The Constitutional History of England

THECONSTITUTIONALHISTORY OF ENGLANDA COURSE OF LECTURESDELIVERED BYF. W. MAITLAND

First Edition 1908PREFACEdcI have written a course of lectures in six months onConstitutional History. Do I publish it? No." The lectureswritten in six months, which Professor Maitland told theCambridge Law Club would not be published, were deliveredduring the Michaelmas term of 1887 and the Lent term of1888, and were specially designed for the needs of undergraduatesof the University of Cambridge reading for theLaw Tripos. The last word of the last lecture was written onApril 7, 1888.Let us observe the date. Maitland had been recalled toCambridge as Reader in English Law in 1883 and this is oneof his early courses of academic lectures delivered before hiselection to the Downing Chair in the summer of 1888. It waswritten seven years before the appearance of the History ofEnglish Law, nine years before Domesday Book and Beyond,ten years before Township and Borough, twelve years beforethe Introduction to Gierke's Political Theovies of the MiddleAges. From internal evidence it would seem that some ofthe earlier lectures were composed before the completion ofBracton's Note Book in 1887. Much of the ground which ishere covered was afterwards traversed with greater deliberationand more elaborate scrutiny; some part of the journeyMaitland had never the leisure to retrace. Yet the student ofhis work will find in these early discourses many of the

Outline of the course. Sketch of public law at five periods,(I) 1307, (11) I 509, (111) 1625, (IV) 1702, (V) the present day.Reasons for this choice of periods. The first and last sketcheswill be the most thorough.PERIOD I.ENGLISH PUBLIC LAW AT THE DEATH OF EDWARD I.A. General Characteristics of English Law and Reviezo ofLegislation.(i) Before 1066. Dooms of the kings and witan ; substratum oftraditional law (folk right) ; local customs ; theory of the three laws,West Saxon, Mercian, Danish ; formalism of traditional law ; Romanlaw unknown ; influence of the church ; characteristics of the doomsPages 1-6(ii) 1066-1 154. What law had the Normans? Survival ofEnglish law ; confirmations by William I and Henry I. Law books :Leges Edwardi, H/iIlelmi, Henrici Primi; fusion of English andNorman (Frankish) law. Genuine laws of William I; charters ofHenry I and Stephen ; Domesday Book . 6-10(iii) 1154-1215. Henry 11 as a legislator; Constitutions ofClarendon (I 164) ; growth of Canon law; study of Roman law;' assizes ' ; possessory assizes and grand assize ; assizes of Clarendon(I 166) and Northampton (I I 76). Law books : Glanvill (circ. I 188) ;Dialogus de Scaccario ; the first Plea Roll (I 194) . . 10-14' Printed copies of this analysis or syllabus were supplied to those whoattended the course of lectures. A few sllght changes have been made, where theorder of topics in the lectures does not correspond w~th that laid down in theanalysis.

(iv) 1215-1272. The Charter : various editions, 1215, 1216,12 I 7, 1225 ; its chardcter ; beginning of statute book ; Statute ofMerton (1236), of Marlborough (1267); the Barons' war. Study ofjurisprudence : Bracton (ob I 268) ; Roman law and English ' caselaw '; evolution of con~mon law . . 14-18(v) I 272-1307. ' The English Justinian.' The great statutes,I 275 Westminster I, 1278 Gloucester, I 284 Wales, 1285 WestminsterI1 and Winchester, 1290 Westminster 111, 1297 ConjrnzatioCartaruwz ; their character and permanent importance. Edward asan administrator. Law books : Britton, Fleta. The first Year Book,1292. Check on growth of unenacted law. Roman law ceases tobe studied. Growth of class of lawyers. 'Common law,' contrastedwith statute, local custom, ecclesiastical law ; not yet with 'equity '18-23B. The Land Law.Reasons for starting with land law . . 23-24Theory of tenure. Subinfeudation : stopped by Statute of\Irestminster I1 ; the feudal formula A tenet terranz de B. Tenureand service. Classification of tenures : (I) frank almoign ; (2)knight's service ; the knight's fee ; homage, fealty ; aids, reliefs,prilner seisin, wardship, marriage, fines on alienation, escheat ;(3) grand serjeanty; (4) petty serjeanty ; ( 5) free socage; incidentsof socage tenure ; (Note, classification of tenures not a classificationof lands; the same land may be held by several tenures. Notemilitary service done only in the king's army ;) (6) villeinage ; villeinstatus and villein tenure ; tenencenturn no12 vtutat statunz . 24-35Definition of freehold ; li6er.um tener~zentum opposed to villanunttenemzntul~c ; afterwards also to chattel interests. Treatment ofchattels; testamentary causes go to court christian; no wills offreehold ; primogeniture, its gradual spread.[The manor and its courts; court baron and customary court;who were the judges? I-Tad every manor freeholders? No moremanors to be created (rzgo).]Feudal ideal;-no connection between lord and vassal's vassal;this ideal to be had in mind that we may see how far it is realized35-39C. Divisions of the Realm and Local Goz~er~lntent.(i) The shire ; its history ; shire moot ; ealdorman ; sheriff; theNorman earl (comes) and Norman sheriff (z~iceconres). The countycourt (shire moot) not feudalized; its constitution; its politicalimportance ; quasi-corporate character of county ; acts as a wholefor many purposes ; election of coroners (I 194) ; struggle for electivesheriffs ; the county (court) represented in parliament . 39 -44(ii) The hundred ; its history, hundred moot : quasi-corporatecharacter of the hundred; its duties; represented in the eyres byjurors. Hundreds in private hands ; the court leet and the sheriffsturn ; the serjeant of the hundred . . . 44-46(iii) The vill or township; its duties; represented in the eyreby reeve and four men; election of the reeve. Relation of thetownship to the manor . . 47-52(iv) The boroughs; each borough has its own history, generali~ationdifficult. Privileges of boroughs may be brought under severalheads : (a) immunities ; (6) courts of their own, like hundred-courts ;(c) elective officers, baillivi, prmpositi; (d) collection of royal dues,thejma burgi; (e) guilds. The city of London. The notion of acorporation (juristic person) not yet formed; but the greater townshave what are afterwards regarded as the powers of corporatiolls52-54D. Central Goz)ernme~ct.Retrospect :-(1) Before 1066. King and witan; actual composition ofwitenagemot; theory that it had been a folk moot; the bishop;the ealdorman ; the thane (minuter regis). Tendency to\\ ardsfeudalism. I'owers of this assembly ; election and deposition ofkings, appointment of officers, legislation, judicature, etc. ; but reallythere is little central government. Kingship increases in splendour :but rather in splendour than in power . . 54-60(ii) 1066-1154. Title to the kingship ; practical despotism ofNorman kings; tradition of counsel and consent maintained. TheCz~ria Regis, how far formed on feudal lines ; number of tenants inchief; suit of court a burden. The ct~ria Regis in a narrower sense ;the administrati~e body; the officers of state, justiciar, chancellor;the exchequer and its routine . . 60-64(iii) I 154-1 2 16. Definition in Charter (I 2 15) of commz~necotlsiliunz regni. Who were the 6lzrones nzajores and what was abaronia? Line of demarcation gradually drawn among tenants inchief. Assemblies under Henry 11; consent to legislation andtaxation. The administrative and judicial body ; professiona! judgesunder Henry I1 ; itinerant judges ; the barons of the exchequer

. . .Xlll(iv) 1216-1295. Changes in the Charter. Growth of representation;parliament of 1254; later parliaments; events of 1261,I 264, I 265 ; doubts as to constitution of later parliaments ; parliamentof I 295 becomes a model . 69-75Constitution of parliament of three estates.(I) Clergy: the bishops, their two-fold title; abbots; theinferior clergy ; praemunientes clause ; parliament and the convocations. 75-78(2) Ba~onage : difficulties created by demand for a strict theory ;tenure by barony and barony by tenure; barony by writ; a distincttheory of hereditary right supersedes a vaguer theory of right bytenure. Judges and other councillors summoned ; their position78-84(3) Commons: communes and comtnunae ; the electors in theshire; representation of the county court; the boroughs; demesneand other boroughs ; the electors in the boroughs ; non-representationof the palatinates . . . 85-90Magna Concilia as contrasted with Parliaments : specification ofterms . 90The Co~zcilium Regis; growth during minority of Henry I11 ;relation of council to parliament, as yet undefined.I. Legislation ; in parliament, in a Mapzsm ConciZium, in thepermanent council. Line between statute and ordinance slowlydrawn.2. Taxation ; sources of royal revenue, profits of demesne lands,feudal dues, profits of justice, sale of privileges and offices, ecclesiasticaldues, tallage of demesne lands, customs; extraordinaryrevenue, Danegeld, carucage, taxes on movables. Consent necessaryto taxation; charter of 1215 ; practice under Henry I11 andEdward I ; crisis of I 297 ; the Con.rmatio Cartarum and DeTallagio ?ton co?~cedendo . . 91-96The kingship ; becoming hereditary ; coronation oaths. 'Theking can do no wrong ':-meaning of this. Theory of kingship inBracton; the right to revolt. Modern notion of 'sovereignty' inapplicable;denied by current doctrine of church and state. Theking as a legislator ; Glanvill and Bracton on Quod prifzc$i placuit,etc. Legislation by means of new writs; can the king make newwrits ?-a limit set to this power . 97-105E. Administration of Justice.The courts are (I) communal, (2) feudal, (3) royal, central andpermanent, (4) royal, local and temporary (visitatorial), (5) ecclesiastical.General principles as to their competence.The king's court to start with, (a) a court of last resort whenjustice denied, (6) a court for the tenants in chief, (c) a court forpleas of the crown . . 105-107Growth of royal jurisdiction :-(i) Criminal.Pleas of the crown; in Canute's laws; in LegesHenrici Phi; gradual extension by means of the ideas of (a) king'speace, (6) felony. The appeal and indictment . . 107-111(ii) Civil. Lines of progress, (I) evocation of causes pod nisifeceris, etc. ; (2) no one need answer for freehold without writ;(3) royal procedure of grand assize; (4) royal possessory assizes ;(5) writs of praeczpe ; contempt of king's writ ; (6) king's peace ;action of trespass. The king's court offers advantages to suitors,e.g. trial by jury . . . . 111-11sHistory of procedure. Archaic procedure ; proof comes afterjudgment and is an appeal to the supernatural : oaths ; compurgation ;formal witness procedure ; ordeals ; (after Conquest) battle. Germof jury-trial not to be found in England ; but in prerogative procedureof Frankish kings; the Frankish inpuisitio ; trial by the oath ofpresumably impartial neighbour-witnesses ; introduced into Englandas a royal privilege; Domesday book. Generalization of inquestprocedure under Henry I1 ; regale henejcium ; (I) grand assize,(2) possessory assizes, (3) the jurata in civil cases, (4) the accusingjury (connexion with Ethelred's law disputed), (5) the jurata inappeals and indictments; peine forte el dure. Jurors still witnessesat end of thirteenth century. Local courts never attain to trial byjury . . 115-132The courts in the time of Edward I.Work of (a) communal,(6) feudal courts, rapidly diminishing : Statute of Gloucester. (c)The king's central court has divided itself; extinction of the justiciarship;(i) king's bench, (ii) common pleas, (iii) exchequer, (iv) king inparliament, (v) king in council. History of the (a') visitatorial courts;justices in eyre ; the more modern commissions, (I) assize, (2) gaoldelivery, (3) oyer et termirrer . . 132-141

xivF. Retrospect of Feudalism. PERIOD 11.Notion of a 'feudal system,' as a system of European commonlaw introduced by Spelman, popularized by Wright and Blackstone ;an early effort of comparative jurisprudence; it is valuable, butdifferences between various countries are great and should not beoverlooked . . 141-143Attempts to define feudalism. How far was the feudal idearealised in England ?Tendency towards feudalism in Anglo-Saxon law; the territorializationof legal relationships ; its economic causes. (I) The thegnage ;the thegn as a landowner; military duty and land-owning; folklandbecoming terra Regis. (2) The duty of having a lord imposed bythe state. (3) Grants of jurisdiction. (4) Dependent landowners ;villeinage . . 143-151Feudalism in the Frank Empire; benejcium and feoakm; thebreaking up of the dominiunz. Jurisdiction in private hands. Thekingprimus interpares. Relation of the Duke of Normandy to theking of the French.In what sense William introduced feudalism. The theory oftenure : all land brought within it ; a quiet assumption feudal tenurenot the mark of a noble or military class. So far as feudalism ismere private law England is the most feudalised of all countries152-158Gradual development of doctrine of military service by means ofparticular bargains; not completed until scutage is imposed andfeudalism is on the wane. Elaboration of 'incidents of tenure' isalso gradual ; burdens of wardship and marriage unusually heavy inEngland.But political influence of feudalism is from the first limited.(I) Oath of allegiance exacted. (2) Man never bound by law tofight for any but the king; private war never legal. (3) Duty of allto serve in army irrespective of tenure is maintained. (4) Taxationnot limited by feudalism. (5) Feudal justice has but a narrowsphere; communal courts retained and not feudalised. (6) King'scourt and council not definitely feudalised . . 158-164SKETCH OF PUBLIC LAW AT THE DEATH OF HENRY VII.I. Its Constitution.History of the three estates.(i) Clergy :-bishops, abbots; non-attendance of clericalproctors.(ii) Lords :-the dukes, marquises, viscounts. Peerage bypatent and peerage by writ. Barony by tenure. Number of peers.Idea of 'peerage'; right to trial by peers admitted, but within narrowlimits. Court of the High Steward. The peerage not a caste.Preponderance in the House of Lords of lords spiritual.(iii) Commons :-Number of members. The county franchise ;the forty shilling freehold. Number of boroughs represented. Theborough franchises.Wages of members.Arrangement of Parliament in two houses; when effected.Functions of the two houses. Wording of the writs . 165-1772. Frequency and Duration of Parliaments.Annual Parliaments. Statutes of 1330 and 1362. Intermissionsof Parliaments become commoner under Edward IV . 177-1783. Business of Parliament.We must not start with a theory of parliamentary sovereignty;such a theory the outcome of struggles . . I79(i) Taxation :-here the need of Parliaments is established.Direct taxation without consent of Parliament becomes impossible.History of indirect taxation. Benevolences. Parliamentary taxation;taxation of clerical estate. Money grants to be initiated by theCommons: form of grants. Tonnage and poundage. Wealth ofHenry VII. Change in the king's financial position. Purveyanceand preemption. Audit of accounts and appropriation of supplies179-184(ii) Legislation. Changes in the legislative formula. Originalequality of commons and clergy. Declaration of 1322. Gradualcoordination of lords and commons. Mapa conn7ia. Legislationby the king's Council ; ordaining and dispensing powers.Forms ofbill and statute. Royal dissent. Growing bulk of statute law:character of the statutes . . 184-190

xviAnalysisB. The King and his Council.The king's title : events of 1327 and 1399. Title of Henry IV,Edward VI and Henry VII. Legitimism of the Yorkists 190-195His powers or 'prerogatives': their wide and indefinite extent.The character of the kingship varies with the character of the king ;but law varies little. Thus the (so-called) 'New Monarchy' is introducedwithout change in the law. Fortescue's theory of the king-ship . - 195-199The Council : its constitution ; its constantly changing character.Royal minorities and regencies. The Council as a council ofregency. Under Edward IV and Henry VII it becomes strong asagainst the people, weak as against the king. The king's seals;' ministerial responsibility.' Functions of the Council . 199-203C. Administration of lustice.Decay of feudal and comnlunal courts. The justices of thepeace ; their history ; their ever-growing powers ; summary penaljurisdiction ; their connexion with the council. The three courtsof common law. The commissions of assize, etc. The nisi priussystem. Trial by jury; changes in its character ; in civil cases ; incriminal cases ; grand and petty juries ; peine forte et dare. Appealsand indictments. Fortescue on the jury . . 204-213Jurisdiction of the Parliament (i.e. for this purpose, House ofLords) :-(i) trial of peers, (ii) writs of error, (iii) impeachments.Contrast between impeachments and acts of attainder; earlyinstances . . 213-216Jurisdiction of the Cauncil, (I) as courts of error,-thissup-pressed; (2) as a criminal tribunal of first instance; statutes andpetitions against it; gradual acquiescence of Parliament; jurisdictionof Council acknowledged by statute ; question as to the legality ofthe jurisdiction; the Act of 1487. (3) Jurisdiction of Council incivil cases; growth of the Court of Chancery . . 216--221The chancellor and his powers. Petitions to the king for civilrelief referred to the chancellor. He is warned off the field ofcommon law; but acquires an 'equitable' jurisdiction. Nature ofEquity; becomes a supplemental system of law . . 221-226D. General Characteristics of English Law.Common Law; its conservatism ; its development under Edward IVand Henry VII ; new forms of action. Text books and reports.Statute law; characteristics of medieval statutes; growth ofeconomic legislation.Remarks on criminal procedure. History of the law of treason226-236PERIOD 111.SKETCH OF PUBLIC LAW AT THE DEATH OF JAMES I.A. Parliament.I. Constitution of Parliament.(i) House of Lords. Disappearance of the abbots ; legislationas to the appointment of,bishops. Number of temporal lords.(ii) House of Commons. Number of members. Creation ofnew boroughs.The clergy have practically ceased to,be an estate of the realm;taxes still voted in convocation, though confirmed by statute237-2402. Przvileges of Parliammt.' Privilege ' now an important topic.(a) Freedom of debate ; Haxey's case ; Thorpe's case ; Strode'scase; Strickland's case; Wentworth's case; Elizabeth's views andJames's ; events of 162 I.(6) Freedom from arrest; statute of 1433; Ferrer's case; Shirley'scase ; statute of 1604.(c) Punishment for contempt; cases of Storie, Parry, Bland,Floyd . . 240--2453. Jurisdiction of Parliament.i.e. of House of Lords, (a) as a court of ferror, (6) in trial of peers,(c) in impeachments : revival of impeachments ; their importance.Jurisdiction as a ' privilege ' of House of Lords. Acts of attainder245-2464. 3unctions of the Commons in granting money . 2475. Right to determine disputed Elections.Claim of Commons to decide disputes as to elections ; Nowell'scase; events of 1586 . . 247-2486. Parliamentary procedure.The outlines now drawn ; proxies and protests of the lords ; theking in the House of Lords . . . 248

xvi i i A naGysis A naGysis xix7. Freq~ncy and Duration of Parliaments.Long Parliaments of Henry VIII and Elizabeth; long intervalswithout a session; old statutes as to annual Parliaments notrepealed. Important results of long Parliaments . 248-251B. Relation of the King to Parliament.Pliability of Tudor Parliaments ; forced loans ; forgiveness of theking's debts ; growing independence of Parliaments under Elizabethand James.Supremacy of king in Parliament made apparent by (I) acts ofattainder; (2) forgiveness of the king's debts ; (3) repeated settlementsof royal succession ; will of Henry VIII ; (4) ' the Lex Regiaof England' (1539) and its repeal; (5) acts enabling the king torevoke statutes ; their repeal ; (6) interferences with religion. SirThomas Smith on supremacy of king-in-Parliament . 251-255But in many directions the king's power is ill defined; constitutionof the Council. Want of definition illustrated :(I) In legislation. The ordaining power; instances of proclamations; resolution of the judges in Mary's reign ; parliamentaryprotests. Council in Star Chamber enforces proclamations 255-258(2) In fiscal matters. The ' impositions '; Bates' case ; Coke'sopinion; difficulty caused by wide extent of undoubted prerogatives,e.g. as to debasing the coinage. Benevolences. Monopolies ; statuteagainst them ; sale of privileges in the Middle Ages . 258-261(3) In judicial matters. (i) The Court of Star Chamber;theories as to its origin and legality ; Plowden's opinion ; statute of1562 ; Coke's opinion. Connexion with the now well-establishedCourt of Chancery. Its procedure ; arbitrary punishments ; use oftorture. (ii) The Council of the North. (iii) The Council ofWales; doubts as to its jurisdiction. Usefulness of these courts,owing to decay of old local courts. (iv) The High Commission;Coke's opinion as to king's ecclesiastical supremacy; his opinion asto the Commission.(v) Commissions of martial law ; the Court ofthe Marshal and courts martial; precedents under Edward IV ;proclamations of 1588 and 1595 . . 261-267Prerogative and law ; illustrations from Coke's career ; the quarrelwith the ecclesiastical courts; the king no judge; quarrel with theHigh Commission; opinion as to impositions ; as to taking extrajudicialopinions from the judges severally; quarrel with the Chancery;case of the tommendams; his disgrace ; the four p's which ruined him.Why controversy collects round the writ of habeas corpus; itshistory; statutes as to bailing prisoners. Is the king's command acause for imprisonment? 'The resolution in Anderson.' Coke'schange of mind.The gathering storm. Where is sovereignty ? . . 267-275C. History of the Army.The feudal levy ; its clumsiness ; scutage. The Assize of Arms ;the Statute of Winchester; the village constables. Commissions ofarray; statutes of Edward I11 and Henry IV. No standing army.Act of Philip and Mary as to musters; its repeal. Act of Philipand Mary as to keeping armour. Situation in James' reign.Difficulty as to (I) martial law, (2) obtaining money for payment oftroops. Pressing for the navy legal . . 275-280El.Dl.Local Government.General Charactmitics of Laref, especialb Criminal fiw.F1. hgal History of the Reformation.PERIOD IV.A. Constituhbn of the Kings@.Legal theory of Restoration and Revolution. The ConventionParliament and the Convention; were they Parliaments? Attemptsto legalize their acts. James' 'abdication '; its date ; existence ofan interregnum. Was there a Revolution?Settlement of the succession ; the forfeiture clause. New coro-nation oath; history of the old oath ; charges against Laud oftampering with it; quarrel as to its meaning . . 281-288B. Constitution of Parliament.(i) House of Lords. Expulsion and restoration of the bishops.Number of the lords. Abolition of the House in 1649.Maitland appended a note to the effect that these subjects would be treated6. ~f time serves.' Time did not serve, but the Legal IIistory of the Reformation isbriefly summarised later-pp. 506-13.

(ii) House of Commons. Number of members ; new boroughs ;prerogative of giving members to towns falls into disuse. Constitutionof Cromwell's Parliaments. Electoral qualifications ; forfeitureof borough charters. Qualification of members; the projectedexclusion of place-men by the Act of Settlement. Disputes as toelections decided by the House . , . 288-292C. Frequency and Dlrration of Parliornents.Laws of 1641, 1664, 1696.Chronological summary of sessions292-297D. The Question of Sovere&-nty.The theory of Hobbes. In 1625 three claimants for sovereignty :(I) king, (2) king-in-Parliament, (3) the Law. Opinion of thejudges in the Ship-Money case; the king above statute. Logicalflaw in the royalist argument :-it does not go far enough. Theclaim of 'the Law '; Coke's theory as to void statutes ; past legislationrenders it difficult to maintain this claim; what cannot statutedo? The issue lies between (I) and (2), and is decided in favourof (2). The progress of the dispute may be seen in several differentdepartments . . 297-301E. Legislation.Dispute as to (I) ordaining power; proclamation of Charles I ;abolition of Star Chamber; (2) dispensing power; doubts as to itslimits; treatment of it at the Revolution; (3) suspending power;treatment of it at the Revolution; case of the Seven Bishops302-306F. Taxation and Control over Riannce.Under Charles I ; the impositions ; the forced loan ; the Petitionof Right; the ship money ; legislation of 1641. Taxation byJames 11. The Bill of Rights.Appropriation of supplies; events of 1624 and 1665 ; impeachmentof Danby; beginnings of the civil list. The Commons andmoney bills; the 'tacking' in 1700. Taxation of the clergy.Abolition of military tenures, purveyance, preemption ; grant of thehereditary excise . . 306-311G. Administration of Iusfice.xxiAbolition of Star Chamber, High Commission, Councils of theNorth and of Wales. Restoration of High Commission by James;denounced in Bill of Rights. Escape of the Chancery.Change in the commission of the judges; enforced by Act ofSettlement. Independence of jurors ; Bushell's case.The habeas corpus; Darnel's case; Eliot's case; the Act of 1679;excessive bail forbidden.The era of impeachments; various points settled by decision.Changes in the law of treason. Acts of attainder. Disputes betweenthe Houses as to the jurisdiction of the House of Lords. (a) as acourt appeal from Chancery, (b) as a court of first instance.Jurisdiction of the Council in admiralty and colonial cases311-320H. Privilege of Parliament.(I) Freedom of speech; Eliot's case. (2) Freedom from arrest;arrest of the five members; extent of the privilege. (3) Power topunish for 'contempt '; what is contempt? Assertions of privilegeabovelaw . . 320-324I. Military Afairs.The commissions of martial law; billeting of troops; impressment,' the power of the militia.' Settlement at the Restoration ;growth of the standing arniy; commissions of martial law underCharles I1 and James 11. Settlement at the Revolution; the firstMutiny Act; control of Parliament over the standing army.Necessity for annual sessions. The remodelled militia 324-329Preliminary.PERIOD V.I. Though concerned chiefly with England we must rememberthat England is no longer a state but is a part of the UnitedKingdom.Incorporation of Wales in England. Union with Scotland;'personal union' in 1603; legislative union in 1707 ; scheme of the

xxii A ivadysis AnaGysis xxiii'union ; the 'fundamental conditions.' Relation of Ireland toEngland in Middle Ages; Poynings' law; questions as to authorityof English statutes and judicial power of English House of Lords;Act of I 7 19 ; Act of I 783 freeing Irish Parliament from subjection;union of 1801 ; articles of the union. No federation of threekingdoms, but a complete merger in the United Kingdom of GreatBritain and Ireland.Colonies and Dependencies; general principles as to laws inforce in them; subjection to legislature of Great Britain and Ireland;taxation of the American colonies. Abolition of slavery and otherinstances of legislation for colonies. Colonial constitutions; crowncolonies and self-governing colonies; wide powers of legislation givento colonial assemblies.Distinguish institutions which are merely English, from thosecommon to Great Britain or to the United Kingdom or to all theking's dominions; e.g. there is no English Parliament, no Englishnationality, but English courts of law, English domicile.Now it becomes important to distinguish carefully rules of lawfrom rules which however punctually observed are rules of 'positivemorality,' 'customs or conventions of the constitution,' 'constitutionalunderstandings'; these are much interwoven; reason of this, ourconservatism of form . - 330-343A. The Sovereign Body.I. Tk kingsh$ ; statutory settlement of succession ; queens ;queens' husbands. 'The king never dies.' Coronation oath; declarationagainst Popery; king must 'join in communion with' Englishchurch. Royal Marriage Act. No legal mode of deposing king.Infant and incapable kings ; common law makes no provision ;king never legally incapable; minorities provided for by occasionalstatutes; events of 1788 and 1810 when George I11 was insane;great seal used without king's assent . - 343 -34611. The House of Lords. Lords Spiritual; legislation as to thenew bishoprics. Irish bishops have come and gone. Mode ofappointing bishops.Lords Temporal; increase of numbers; representatives of Scottishand Irish peers ; mode of making peers . . 347-351111. The House of Commons. (I) Fluctuation in number; theActs of Union . 351-352(2) Qualification of electors in counties and boroughs. Thereforms of 1832-67-84. Present state of law.Distribution of seats. Parliamentary and municipal organizationsbecome distinct. Tendency towards equal electoral districts,but still distinctions between borough and county qualifications.causes of disqualification . 352-364(3) Qualification of members. History of parliamentary oaths.History of ' office ' as qualification . 364-370Mode of election ; introduction of the ballot . 370Determination of disputed elections . 370Modes of ceasing to be a member; expulsion; Wilkes' case371-372IV. Ei-equency and Duration of Parliament. Frequency dependson Triennial Act of 1694 ; (N.B. Act of 1664 repealed in 1887) ;duration on Septennial Act of I 7 I 5. Why annual sessions necessary.Legislation as to dissolution by demise of Crown . 373-374V. Priztileges of Parliament. (I) Freedom of speech; exceptionout of ordinary law as to defamation ; Stockdale v. Hansard, Wasonv. Walter. Reporting. (2) Freedom from arrest ; now of littleimportance. (3) Power of punishing for contempt; treatment ofthis power by courts of law ; actual use of it - 374-380VI. The Work of Parliament. Other functions besides passingstatutes; inquiry and criticism; examination of witnesses. Essentialsof a statute; each House has large powers of regulating its ownprocedure; questions as to whether both Houses have really consentedto what on its face professes to be a statute.The omniconlpetence of statute; it may not be a 'law' in thejurists' sense; instances of particular commands given by statute.111 the eighteenth century Houses attempt to govern as well as legis-late by statute.In the nineteenth century vast new powers havebeen given to ministers and law courts, and Parliament interferes lesswith particulars; but the power exists and is exercised, e.g. disfranchisementby statute of A, B, and C, corrupt voters, also Acts ofIndemnity, also appropriation of supplies . . 380-387B. The ' Crown ' and the ' Government.'Difficulty of dealing with this subject owing to the growth of'constitutional understandings,' maintenance of ancient forms, andunwillingness to expressly take power from the king . 387-388

xxiv AnaGysis A naZysis xxvHiJtoricat Review. Revolution settlement ; large prerogativesleft to William I11 which he was expected to exercise. Position ofPrivy Council and growth of Cabinet. How the Cabinet was legallypossible. Attempt (1700) to stop by statute the growth of an innercouncil ; repealed I 705 . 387-390History of the great officers; chancellor, treasurer, keeper ofprivy seal, president of council, secretaries of state, chancellor ofexchequer, admiral; treasury and admiralty in commission. These orsome of these form an irregular inner council, with whose concurrencea king can exercise prerogatives ; they have the seals ; importance ofthe seals of office ; no need to summon other councillors 390-394Cabinet government of modern type slowly evolved ; king ceasesto be present at cabinet meeting; solidarity of cabinet slowlyestablished (1) political unanimity, (2) common responsibility toParliament (though not to the law), (3) submission to a 'PrimeMinister.' Gradual retirement of king behind his Ministers, who arenow expected to be in Parliament; he ought to take their advice, andchoose them in accordance with wishes of Parliament (later, of Houseof Commons). All this 'extra-legal.' King's legal powers have notbeen diminished; on the contrary since the establishnlent ofministerial system have vastly grown owing to modern statutes.King's own sign manual or consent given at a (formal) meeting ofPrivy Council necessary for countless purposes. Other powersgiven to this or that high officer (cabinet minister). Distinguishprerogatives (i.e. common law powers) from statutory powers of king394-400Present State. (I) Necessary existence of Privy Council. (2) Itslegal constitution. (3) And actual composition. (4) King mayconsult such privy councillors as he pleases and this is legally ameeting of the Privy Council. (5) Large powers of king in Council.(6) Necessary that king should have certain high officers (e.g. twoLords of the treasury, otherwise he cannot lawfully get the moneythat Parliament has voted). (7) Customary composition of the'Cabinet' out of these high officers; as a body it has no legal powers.(8) But almost every member has large legal powers. (9) Customarycomposition of ' Ministry.' (10) Solidarity of Ministry, maintainedby customary rules as to resignation and acceptance of office, butnot recognized by law; ultimate sanction a refusal of supplies.(I I) Legal tenure of high offices during king's pleasure. Choice ofPrime Minister. (12) Relation of Cabinet to the Privy Council ;formal meetings of Privy Council (i.e. of king with a few ministersand sometimes a royal duke, or officer of household), at whichking's powers are exercised in accordance with policy of Cabinet.(13) Many, but not all, royal powers must be exercised by Order inCouncil; but every (or almost every) exercise of royal power requiresauthentication by some high officer. Form of an Order in Council.Classification of delegated powers . . 400-407Of some of the high officers and their legal powers. (I) 'TheLords of the Treasury, (2) the Secretaries of State; large legalpowers in governing England of (Home) Secretary. (5) Board ofTrade. (6) Local Government Board. (7) Education Department,etc. Illustration of actual working of government system 407-414Object of illustrating these statutory powers :-Blackstone's statementthat the high officers (e.g. secretaries) have few (if any) legalpowers of their own, has become utterly untrue, though still repeatedby text writers. The old theory (never very true) that 'legislativepower is in king and Parliament, executive power in king' nowrequires serious modifications. Many powers of great importanceare given by statute not to the king but to some high officer-e.g.power of making rules for the government of police given to Secretaryof State. The requisite harmony between those who have thesepowers is obtained by the (extra-legal) organization of the Cabinet.Our law now knows not so much 'the executive power' as manyexecutive (better, governmental) powers. This is obscured by talkabout 'the Crown ' ; ' the Crown ' is often a cover for ignorance ; theking has powers and the high officers have powers, but the crownlies in the Tower.Difficulties as to limits of king's prerogative powers; becauseinstead of them new statutory powers are used; but a prerogativedoes not become obsolete by disuse and the clear words of a statuteare necessary to take it away . . 415-421C. Classz$cafion of the Powers of the Crown.Shall deal with many in subsequent sections ; but here (I) recallpowers relating to constitution, assembling and dissolving of Parliamentand turning bills into statute; (not correct to speak of kingas having a 'veto '; he must actively assent; assent last refused byAnne); (2) note power of making war or peace; question as topower of ceding territory; power to make treaties, but treaty doesnot alter English law; illustration, extradition treaties ; ambassadors ;aliens; (3) appointment of offices . . . 422-430

xxvi AnaGysis A naGysis xxviiD. The fiscal System.Retrospect: the Crown lands and king's private estates, thenational revenue and king's private revenue, gradual establishmentof these distinctions. The ' ordinary ' and ' extraordinary ' revenue ;decline in importance of former. History of hereditary excise andcivil list; a king with a salary . 430-438History of Consolidated Fund and of National Debt. Chargeson Consolidated Fund. Present sources of revenue. Most taxesimposed by permanent Acts : but supply granted only from year toyear. Function of House of Commons in granting and appropriatingsupplies. How supplies expended ; necessity of royal sign manual ;method of voting supplies . 438-447E. The Military System.Army. Annual Mutiny Acts; Army Act 1881 ; nature of itscontents ; ' Military law'; prerogative of making articles of war ;billeting and impressment of carts ; terms of soldiers' service howfar fixed by statute ; conscription in the eighteenth century ; thecommand of the army. . 447-454MiMia. The 'constitutional force'; models of 1662, 1757,1786, 1802, 1853; suspension of the ballot; present plan 455-459Navj~. Contrast between treatment of Army and Navy; Acts of1661, 1749, 1866. Pressing sailors . . 460-462F. Administration of Justice.Put on one side Judicial Committee of Privy Council; its greatimportance . .. . 462-464a. System of Civil Courts. The great changes of the nineteenthcentury. The (new) County Courts; the Court of Chancery thedomain of modern equity; Chancery procedure ; fusion of Equityand Common Law; the High Court of Justice; the High Court ofAppeal ; the House of Lords.Court of Appeal, House of Lords. General rules as to theircompetence. Present relation of Equity to Law . 464-4736. System of Criminal' Courts. (I) Courts of Summary Jurisdictionformed by justices of peace. (2) Quarter Sessions. (3) HighCourt. Writs of error to (4) Court of Appeal and (5) House ofLords. (6) Court for Crown Cases Reserved. Trial of peers andimpeachments before the House of Lords. Some notes on CriminalLaw . . . . 473-478c. Government anrZJustice:-(I) Independence of judges secured;(2) king has no powers over Civil Justice ; but (3) has legally largepowers over Criminal Justice; power of pardon; power to stopcriminal proceedings ; (4) ' the king can do no wrong ' ; meaningof this ; petitions of right ; ( 5) king's officers can be sued and prosecutedin ordinary way even for official acts . 478-484G. The Police System.Continued decline and fall of sheriff; his present position. Theparish constables; Act of 1842 ; special constables. The new constabulary;its government. Position of police constable; law ofarrest ; constant increase of police constable's statutory powers.Suppression of tumults ; Riot Act ; use of military force 485-492H. Social Afairs and Local Governnaent.Only possible to hint at the existence of this great field of lawwhich constantly grows wider; but at least its existence should beknown.Organs of local government :-(I) Justices of Peace . 493-495(2) Municipal corporations ; the reform of 1835 . 495-497(3) Poor Law Guardians; the reform of 1834 . 497-498(4) Sanitary authorities ; acts of 1848 and 1875 . 498(5) School Boards, 1870. Progress of democratic representativegovernment ; bill (Act?) of 1888 for County Councils . 499-501-The new duties thus cast on the Englishman : some of which areactive duties, e.g. to register child's birth, have it vaccinated, andsent to public elementary school. Also notice Expropriation Acts.501-506J. The Church.Medieval theory of church and state ; a denial of 'sovereignty.'Jurisdiction of ecclesiastical courts ; temporal effects of excommunication; the Canon Laws; statutes against heretics. Endowments,not of 'the church,' but of churches. The Reformation 506-511

xxviiiAnaGysisSubjection of church to king and Parliament. Legislation as todogma and ritual. History of convocations ; their impotence511-514History of attempts to enforce conformity on Catholics andProtestant Dissenters ; Blackstone's account of laws against sectariesand papists. History of toleration. Present state of the case ;remaining religious disabilities ; laws against Jesuits ; heresy anecclesiastical offence. Present condition and powers of ecclesiasticalcourts. Legal position of clerk in English orders contrasted withthat of catholic priest and dissenting minister ; the former a 'status';'the church ' not a corporation, nor even a definite body of persons5'4-526K. The Definition of Constitutional Law.Such terms as ' public,' ' constitutional,' ' administrative ' law,not technical in England; Austria's use of them, and Holland's.Theory that constitutional law deals with structure, administrativewith function; difficulty of taking this as outline for a code.Interdependence of all parts of the law; e.g. main outlines of'constitutional law ' of Middle Ages are determined by 'real propertylaw'; constitutional struggles of seventeenth century not to beunderstood without knowledge of criminal procedure . 526-539PERIOD I.ENGLISH PUBLIC LAW AT THE DEATH OF EDWARDTHE FIRST.A. General characteristics of English law and reviewof legislation.i. Before 1066.The oldest English laws that have come down to us arethose of Ethelbert, king of Kent, and we have good reason forbelieving that they were the first English laws that were everput into writing. Ethelbert became king in 560 and died in616. The laws that we have must have been published afterhe had received the Christian faith ; we may attribute them tothe year 600 or thereabouts. Thus the history of Englishlaw may be said to begin just about the time when the historyof Kolnan law-we will not say comes to an end, for ina certain sense it has never come to an end-but comes toa well marlted period :-the reign of Ethelbert overlaps thereign of Justinian. Not only are Etheibert's the earliest Englishlaws, but they seem to be the earliest laws ever written in anyTeutonic tongue. It is true that on the continent the Germannations which overwhelmed the Roman Empire had alreadyfelt the impulse to put their laws in writing ; the Lex Salica,for example, the law of the Salian Franks, is considerablyolder than anything that we Englishmen have to show, but itis written in Latin, and for centuries Latin continued to bethe legal language of the new kingdoms. But our earliestlaws are written in English, or Anglo-Saxon, and until theNorman Conquest all laws were written in English, though

2 Constitutional History PERIODLatin was commonly used for many legal documents, conveyancesof land and the like. Seemingly it was the contactwith Roman civilization in the form of Christianity whichraised the desire for written laws. Beda, who died in 735,says that Ethelbert put his laws in writing ' juxta exemplaRomanorum.' It is possible that some collection of ecclesiasticalcanons served as a model. We do well to rememberthat the oldest laws that we have, however barbarous theymay seem, are none the less Christian laws. ' God's propertyand the church's 12-fold. A bishop's property I I-fold. Apriest's property 9-fold. A deacon's property 6-fold. A clerk'sproperty 3-fold':-this is the first utterance of English law.This it is well to remember, for it should prevent any glib blkabout primitive institutions : Teutonic law (for what is true ofEngland is true also of the continent) when it is first set inwriting has already ceased to be primitive ; it is alreadyChristian, and so close is the connection between law andreligion, that we may well believe that it has already undergonea great change.We have two more sets of Kentish laws, a set from Hlotharand Eadric, who seem to have been joint kings of theKentings, which we may date in 680 or thereabouts, and a setfrom Wihtrzd, which comes from 700 or thereabouts. Wessextakes up the tale ; in 690 or thereabouts king Ine, with thecounsel and consent of the wise, published a set of laws.Then we have a gap of two centuries, the greatest gap in ourlegal history. The laws of Alfred, which come next in order,may be attributed to 890 or thereabouts. They show us thatduring the two last centuries there had been no great changein the character of law or the legal structure of society.Alfred disclaims all pretension of being an innovator, he willbut set down the best principles that he has been able to findin the laws of Ethelbert, of Ine and of the Mercian king,Offa. The laws of Offa of Mercia, who died in 796, have notcome down to us.Beginning with Alfred's we now have a continuous seriesof laws covering the whole of the tenth century and extendinginto the eleventh, laws from Edward the Elder, Ethelstan,Edmund, Edgar, and Ethelred ; the series is brought to an endI Anglo-Saxon Dooms 3by a long and comprehensive set of laws coming from ourgreat Danish king, Canute. We have no one law that can beascribed to Edward the Confessor, who, however, in after daysacquired the fame of having been a great legislator.These Anglo-Saxon laws or dooms-as they call themselves-afterhaving lain hid in MS. for several centuries, weredug up in the sixteenth century as antiquarian curiosities.Lambard published some of them in 1568 under the titleArchaionomia. In 1840 they were published for the RecordCommissioners with a modern English translation under thetitle A~iciezzt Lows a d I~istitutes of E?zgla~zd; they were againpublished in 1865 with a German translation by Dr ReinholdSchmidl. These editions contain, besides the dooms, a fewbrief statements of customary law, forms of oaths and the like.The whole material can be printed in about 160 octavo pages.We have nothing from this period that can be called a treatiseon law, and we have but very few accounts of litigation. 011 theother hand we have a large number of private legal documents,conveyances of lands, or land books as they were called,leases, wills and so forth ; these were collected and printed byJ. M. Kemble in his Codex Dtplo~noticr~s &vi Sttxonici.I have spoken of ' sets of laws' and have refrained fromusing the word code. Once or twice it would seem as if anattempt had been made to state the existing law ; but ingeneral these laws seem to be new laws, additions to the lawthat is already in force ; we may compare them to ourmodern statutes and like our statutes they pre-suppose a bodyof existing law. I will not say that they pre-suppose'common law,' because I think that the phrase implies lawcommon to the whole kingdom, and how much law there wascommon to the whole kingdom in the days before the NormanConquest is a very difficult question. In the twelfth century,some time after the Conquest, it was the established theorythat England was or had been divided between three laws,the West-Saxon, the Mercian and the Danish. The oldlaws themselves notice this distinction in a casual way; butwe have little means of telling how deep it went. It is highly1 The best edltion is now that of F. Liebermann, Die Cesetze de?- A~zgelsachsm,2 vols., Halle, 1903 and 1906.

4 Constitutional History PERIODprobable, however, that a great variety of local customs wasgrowing up in England, when the Norman Conquest checkedthe growth. Originally there may have been considerabledifferences between the laws of the various tribes of Angles,Saxons and Jutes that invaded Britain, and the Danes musthave brought with them a new supply of new customs. Butthis would not be all ; the courts of justice, as we shallpresently see, were local courts, courts of shires and ofhundreds ; resort to any central tribunal, to the king and hiswise men seems to have been rare, and this localization ofjustice must have engendered a variety of local laws. Lawwas transmitted by oral tradition and the men of one shirewould know nothing and care nothing for the tradition ofanother shire.The written laws issued by the king and the wise coverbut a small part of the whole field of law. They deal chieflywith matters of national importance, in particular with thepreservation of the peace. To keep the peace is the legislator'sfirst object, and is not easy. The family bond is strong;an act of violence will too often lead to a blood feud, a privatewar. To force the injured man or the slain man's kinsfolk toaccept a money composition instead of resorting to reprisalsis a main aim for the law giver. Hence these dooms oftentake the form of tariffs-so much is to be paid for slaying aneorl, so much for a ceorl, so much for a broken finger, so muchfor a broken leg. Another aim is to make men mindful oftheir police duties, to organize them for the pursuit of robbersand murderers, to fine them if they neglect such duties. Rutof what we may call private law we hear little or nothing-ofproperty, contract or the like. It is easy to ask very simplequestions about inheritance and so forth to which no certainanswer can be given, and like enough there were manydifferent local customs. There was as yet no body of professionallawyers, law was not yet a subject for speculation ;it was the right and duty of the free man to attend the courtof his hundred and his shire, and to give his judgment there.This must not, however, lead us to believe that law was asimple affair, that it consisted of just the great primary rulesof what we think natural justice. In all probability it wasI Roman inflaence 5very complicated and very formal; exactly the right wordsmust be used, the due solemnities must be punctually performed.An ancient popular court with a traditional law wasno court of equity ; forms and ceremonies and solemn poeticalphrases are the things which stick in the popular memory andcan be handed down from father to son.A great deal has been done by modern scholars and agreat deal more may yet be done towards reconstructing theAnglo-Saxon legal system. Besides the primary sources of informationthat I have mentioned, the evidence of Caesar andTacitus, the kindred laws of other German tribes and bookswritten in England after the Conquest may be cautiouslyemployed for the purpose: but for reasons already given Ido not think that this matter can be profitably studied bybeginners ; we must work backwards from the known to theunknown, from the certain to the uncertain, and when we seevery confident assertions about the details of Anglo-Saxonlaw we shall do well to be sceptical. One point howeverof considerable importance seems pretty clear, namely,that the influence of Roman jurisprudence was hardly felt.There is no one passage in the dooms which betrays anyknowledge of the Roman law books. German scholars arein the habit of appealing to these Anglo-Saxon dooms asto the purest monuments of pure Germanic law; they canfind nothing so pure upon the continent. But we mustnot exaggerate this truth. Roman jurisprudence did notsurvive in Britain, but the traditions of Roman civilizationwere of great importance. The main force which made forthe improvement of law was the church, and the churchif it was Catholic was also Roman. Thus, for example, ata quite early time we find the Anglo-Saxons making wills.This practicc we may safely say is due to the church:-the church is the great recipient of testamentary gifts. Wemay further say that the will is a Roman institution; thatthese Anglo-Saxons would not be making wills, if therehad been no Rome, no world-wide Roman Empire; but ofany knowledge of the Roman law of wills, even of so muchof it as is contained in the Institutes we may safely acquitthem. Suppose a party of English missionaries to go

Constitutionn Z Historypreaching to the heathen, they would inevitably carry with thema great deal of English law although they might be utterlyunable to answer the simplest examination paper about it ;for instance they would know that written wills can be made,and they would think that written wills should take effect,though they might well not know how many witnesses ourlaw requires, or whether a will is revoked by marriage. Insome such way the church, Catholic and Roman, carried withit wherever it went the tradition of the older civilization,carried with it Roman institutions, such as the will, but ina popularized and vulgarized form.I have spoken of the Anglo-Saxon dooms as the dooms ofthis king and of that, but we ought to observe, even in passing,and though this matter must come before us again, that noEnglish king takes on himself to legislate without the counseland consent of his wise men. Legislative formulae are ofgreat importance to us, for we have to trace the growth of thatform of words in which our Queen and Parliament legislatefor us to-day. Here is the preface of the laws of Wihtrzd:'In the reign of the most clement king of the Kentish men,Wihtrzd, there was assembled a deliberative convention ofthe great men: there was Birhtwald, Archbishop of Britain,and the fore-named king, and the Bishop of Rochester,Gybmund by name ; and every degree of the church of thatprovince spoke in unison with the obedient people. There thegreat men decreed these doonls with the suffrages of all, andadded them to the customary laws of the Kentish men';-andso on until the end of the period, until the laws of Canute:"This is the ordinance that king Canute, king of allEngland, and king of the Danes and Norwegians, decreed,with the counsel of his ' witan ' to the honour and behoof ofhimself."ii. 1066-1 I 54.The Norman Conquest is an event of the utmost importancein the history of English law ; still we must not supposethat English law was swept away or superseded by Normanlaw. We must not suppose that the Normans had any compactbody of laws to bring with them. They can have had butThe Norwzan Conquestvery little if any written law of their own ; in this respect they,yere far behind the English.Since 912 these Norsemen had held a corner of what hadonce formed a part of the great Frank kingdom; but theirdukes had been practically independent, owing little morethan a nominal allegiance to the kings of the French. Theyhad adopted the religion and language of the conquered, andwe must believe that what settled law there was in Normandywas rather Frankish than Norse. They were an aristocracyof Scandinavian conquerors ruling over a body of RomancespeakingKelts. No one of their dukes had been a greatlegislator. Such written law as there was must have alreadybeen of great antiquity, the Lex Salica and the capitularies ofthe Frankish kings, and how far these were really in force, wecannot say. The hold of the dukes upon their vassals hadbeen precarious; but probably some traditions of strong andsettled government survived from the times of the Carlovings.For instance, that practice of summoning a body of neighboursto swear to royal and other rights which is the germ of trialby jury, appears in England so soon as the Normans haveconquered the country, and it can be clearly traced to thecourts of the Frankish kings.There is no Norman law book that can be traced beyondthe very last years of the twelfth century ; there is none so oldas our own Glanvill. Really we know very little of Norman lawas it was in the middle of the tenth century. It cannot havebeen very unlike the contemporary English law-the Frankishcapitularies are very like our English dooms, and the East ofEngland was full of men of Norse descent. We must nottherefore think of William as bringing with him a novelsystem of jurisprudence.The proofs of the survival of English law can be brieflysummarised. In the first place one of the very few legislativeacts of William the Conqueror of which we can be certain, isthat he confirmed the English laws. ' This I will and orderthat all shall have and hold the law of king Edward as tolands and all other things with these additions which I haveestablished for the good of the English people.' Then again,after the misrule of Rufus, Henry I on his accession (I IOO)

8 Constitutional Hist ory PERIODconfirmed the English law: 'I give you back king Edward'slaw with those improvements whereby my father improved itby the counsel of his barons.' Secondly, these confirmationsof Edward's law seem to have set several different persons onan attempt to restate what Edward's law had been. We havethree collections of laws known respectively as the LegesEdwardi Confessoris, Leges WiZZeZmi Primi, Leges lenriciPrimi. These are apparently the work of private persons ; wecannot fix the date of any of them with any great certainty.The most valuable is the Leges Henrici Primi, which has beenascribed to as late a date as the reign of Henry 11, but whichthe most recent investigations assign to that of Henry I. Itis a book of some size, very obscure and disorderly. Theauthor has borrowed freely from foreign sources, from the LexSalica, the capitularies of the Frankish kings, and fromcollections of ecclesiastical canons-one little passage has beentraced to the Theodosian Code ; but the main part of the bookconsists of passages from the Anglo-Saxon dooms translatedinto Latin, and the author evidently thinks that these are, orought to be, still regarded as the law of the land. The picturegiven us by this book is that of an ancient system which hasundergone a very severe shock. So the compiler of the LegesEdwardi Confessoris has borrowed largely from the old dooms.His book did much to popularize the notion that the Confessorwas a great legislator. In after times he became the hero ofmany legal myths; but as already said there is no one lawthat can be attributed to him. The demand for Edward's lawwhich was conceded by William and by Henry I was nota demand for laws made by Edward ; it was merely a demandfor the good old law, the law which prevailed here beforeEngland fell under the domination of the Conqueror1. Thirdly,Domesday book, the record of the great survey made in theyears 1085-6-the greatest legal monument of the Conqueror'sreign-shows us that the Norman landowners were conceivedas stepping into the exact place of the English owners whoseforfeited lands had come to their hands; the Norman repre-For a fuller account of the law-books of the Norman period see Pollock andMaitland, History of English Law, 2nd edn. vol. I, pp. 97-110. Stubbs,Lectures on Ear& English History, 37-1 33.I Norman Legislation 9ynts an English antecessor whose rights and duties havefallen upon him. The same conclusion is put before us by thecharters of the Norman kings, the documents whereby theygrant lands to their followers. It is in English words thatthey convey jurisdictions and privileges : the Norman lord isto have sac and soc, tkoZ and theam, infangthief and outfangthief,-rightswhich have been enjoyed by Englishmen, rightswhich can only be described in the English language.At the same time it must be admitted that there has beena large infusion of Norman ideas. Occasionally, though butrarely, we can place our finger on a rule or an institution andsay ' This is not English.' Such is the case with trial bybattle, such is the case with the sworn inquest of neighbourswhich comes to be trial by jury. More often we can say thata new idea, a new theory, has been introduced from abroad,this as we shall hereafter see is the case with what we callfeudalism. But still more often we can only say that a newmeaning, a new importance, has been given to an old institution.The valuable thing that the Norman Conquest gives usis a strong kingship which makes for national unity.No one of the Norman kings, among whom we will includeStephen, was a great legislator. The genuine laws of Williamthe Conqueror are few ; of most of them we shall speak by andby. The two most important are that by which he severs theecclesiastical jurisdiction from the temporal, and that by whichhe insists that every man, no matter of whom he holds hisland, is the king's man and owes allegiance to the king. Fromthe lawless Rufus we have no law. Henry the First on hisaccession (I 100) purchases the support of the people by animportant charter-important in itself, for it is a landmark inconstitutional history, important also as the model for MagnaCarta. Stephen also has to issue a charter, but it is of lessvalue, for it is more general in its terms. It is as administratorsrather than as legislators that William the First andHenry the First are active. The making of Domesday, thegreat rate book of the kingdom, is a magnificent exploit, anexploit which has no parallel in the history of Europe, an exploitonly possible in a conquered country. Under Henry theFirst national finance becomes an orderly system, a system of

10 Constitutional History PERIODwhich an orderly written record is kept. The sheriffs accountsfor 1132 are still extant on what is called the Pipe Roll of3 I Hen. I ; this is one of our most valuable sources of information.It has been casually preserved; it is not until thebeginning of Henry 11's reign that we get a regular series ofsuch records. To illustrate the Norman reigns we have alsoa few unofficial records of litigation. These have been printedby Mr Bigelow in his Placita Anglo-Normannica. Thegenuine laws of William I and the Charter of Henry I willbe found in Stubbs' Select Charters. The so-called LegesEdwardi Co?zfes.soris, WilleZnzi Conqzbestoris, and Henrici Prinziare among the Ancient Laws published by the RecordCommissioners1.iii. Henry 11 (I I 54-89), Richard (I 189-gg), John (I 199-1216).The reign of Henry I1 is of great importance in legalhistory; he was a great legislator and a great administrator.Some of his laws and ordinances we have, they have beencasually preserved by chroniclers ; others we have lost. Thetime had not yet con~e when all laws would be carefully andofficially recorded. At his coronation or soon afterwards heissued a charter, confirming in general terms the libertiesgranted by his grandfather, Henry I. The next monumentthat we have of his legislation consists of the Constitutions ofClarendon issued in I 164. Henry's quarrel with Becket wasthe occasion of them. They deal with the border land betweenthe temporal and the ecclesiastical jurisdictions, defining theprovince of the spiritual courts. During the anarchy ofStephen's reign the civil, as contrasted with the ecclesiastical,organization of society had been well-nigh dissolved-thechurch had gained in power as the state became feeble.Henry endeavoured to restore what he held to be the ancientboundary, to maintain the old barriers against the pretensionsof the clergy. These Constitutions are the result. To someThe Leps Edwnrdi Confessoris and the Legees Henrici Prinri may now beread in- Liehermann's Gesetze der Angelsachsen. For a full and valuable commentaryon the latter document see Stubbs, Lectures on Early English History,1~3-65. For the Leges Willelmi see Stubbs, Select Charters, p. 84.I Growth of the Canon Law I Iextent Henry failed : the murder of the Archbishop shockedthe world, and shocked him, and he was obliged to surrenderseveral of the points for which he had contended. Neverthelessin the main he was successful ; by the action of theroyal court which now becomes steady and vigorous a line wasdrawn between the temporal and the spiritual spheres, thoughit was not exactly the line which Henry tried to define, andthough for a century and more after his death there was stilla debateable border land. The Canon law was just takingshape, a law for ecclesiastical matters common to all Europe.One great stage in its development is marked by the Decretr~vzGratiani, the work of a Bolognese monk, composed, it isbelieved, between I 139 and I 142, i.e. in our King Stephen'sreign. The decrees of ecclesiastical councils, ancient andmodern, genuine and spurious, were being elaborated into agreat system of jurisprudence. The classical Roman law, whichfor some time past had become the subject of serious study,was a model for this new system. We have to rememberthat throughout the subsequent ages Canon law administeredby ecclesiastical courts regulated for all Englishmen some ofthe most important affairs of life. It did not merely definethe discipline of the clergy-all matters relating to marriagesand to testaments fell to its share. A great deal of theordinary private law even of our own day can only be understoodif we remember this. The fundamental distinction thatwe draw between real and personal property, to take oneexample, is the abiding outcome of the division of the field oflaw into two departments, the secular and the spiritual. Whydo we still couple ' probate ' with ' divorce ' ? Merely becauseboth matrimonial and testamentary causes belonged to thechurch courts.We have just mentioned the revived study of Roman law.In Southern Europe Roman law had never perished: ithad survived the dark ages in a barbarized and vulgarizedform. Then in the eleventh century men began to turnonce more to the classical texts. The new study spreadrapidly. In 1143 Archbishop Theobald brought hither inhis train one Vacarius, a Lombard lawyer. He lectured inEngland on Roman law; it seems that Stephen silenced

Constitutions Z History Henry 11him; Stephen had quarrelled with the clergy. But he didnot labour in vain; the influence of Roman law is apparentin some of Henry's reforms, and it has even been conjecturedthat Henry as a youth had sat at the feet ofVacariusl. To the early part of his reign we owe certainmeasures of the utmost importance. The text of the ordinancesor assizes whereby they were accomplished we have lost. Anassize (assisa) seems to mean in the first instance a sitting, asession for example of the king and his barons ; then the nameis transferred to an ordinance made at such a session-we havethe Assize of Clarendon, the Assize of Northampton, and, tolook abroad,theAssizesof Jerusalem; then again it is transferredto any institution which is created by such an ordinance.Henry by some ordinance that we have lost took under hisroyal protection the possession, or seisin as it was called, ofall freeholders. The vast importance of this step we shallbetter understand hereafter. He provided in his own courtremedies for all who were disturbed in their possession. Theseremedies were the possessory assizes of novel disseisin andmort d'ancestor ; there was a third assize of darein presentmentwhich dealt with the right of presenting to churches.Doubtless these possessory actions were suggested by, thoughthey were not copied from, the Roman interdicla. The distinctionbetween a possessory and a proprietary action wasfirmly grasped; proprietary actions still went to the feudalcourts while the king himself now undertook to protectpossession. All this will become more intelligible hereafter.But if the thotlght of protecting possession or somethingdifferent from property was of Roman origin, the machineryemployed for this purpose was of a kind unknown to theRomans, it was, we may say, a trial by jury. This newprocedure gradually spreads from these possessory actions toall other actions. Henry himself extended it to proprietaryactions for land-in the form of the grand assize. The personsued might refuse trial by battle and have the question ' Whohas the best right to this land?' submitted to a body of hisneighbours sworn to tell the truth. More of this by and byFor a fuller account see Pollock and Maitland, Hzsfory of Erzglzsh Law, vol. I,pp. 118-9.when we come to the history of trial by jury; our presentpoint is that by providing new remedies in his own courtHenry centralized English justice. From his time onwardsthe importance of the local tribunals began to wane; theking's own court became ever more and more a court of firstinstance for all men and all causes. The consequence of thiswas a rapid development of law common to the whole land ;local variations are gradually suppressed ; we come to have acommon law. This common law is enforced throughout theland by itinerant justices, professional administrators of thelaw, all trained in one school. During the latter part ofI-Ienry's reign the counties are habitually visited by suchjustices.By the Assize of Clarendon in I 166 reissued with amendmentsat Northampton in I 176 Henry began a great reformof criminal procedure. Practically, we may say, he introducedthe germs of trial by jury : the old modes of trial, the ordealsand the judicial combat, begin to yield before the oath of abody of witnesses. From I 181 we have the Assize of Armswhich reorganizes the ancient military force and thus establishesa counterpoise to feudalism. From I 184 we have theAssize of Woodstock, which for the first time defines theking's rights in his forests. The establishment of an orderlymethod of taxation and the decline of feudalism as a politicalforce are marked by the first collection of a scutage in I I jgpersonalservice in the army may be commuted for a moneypayment-and by the first taxation of personal property, theSaladin tithe of I I 88.Two great books illustrate the legal activity of the reign.The Dialogus de Scaccario describes minutely the proceedingsof the Royal Exchequer. It was written by Richard FitzNeal, Bishop of London and Treasurer of the Exchequer. Theother book is a Treatise on the Laws of England, commonlyattributed to Ranulf Glanvill, who became chief justiciar(prime minister and chief justice we may say) in I I 80. Thisbook, known to lawyers as ' Glanvill,' was written in the verylast years of the reign, I 187-9. It is the first of our classicaltext books. It gives us an accurate picture of the workingof the royal court. The law contained in it is mostly land

I4 Constitutions Z History PERIODlaw: as yet it is with land that the royal court is chieflyconcerned. We can see that Roman law has been exercising asubtle influence ; the writer knows something of the Institutesand occasionally copies their words; but in the main theking's court has been working out a law for itself. It is onlywith the king's court that the writer deals. The customswhich prevail in the local courts are, he says, so many, sovarious, so confused, that to put them in writing would beimpossible. However by the action of the royal court a certainprovince has been reclaimed from local custom for commonlaw; that province is 'land-holding' about which there arealready many uniform rules. The book thus marks an importantstage in the development of common law1.Henry's reign finished, we look onwards to Magna Carta.Under Richard the tradition of orderly administration, ofthe concentration of justice in the king's court was maintained.Richard himself was an absentee king; he neverwas in this country save on two occasions and then but for afew months ; the country was governed by justiciars, by mentrained in the school of Henry 11. Our materials for legalhistory now begin to accumulate rapidly. Not that there ismuch that can be called legislation ; but it now becomes thepractice to keep an official record of the business done in theking's court. Our earliest judicial records come from theyear I 194; thenceforward we have the means of knowingaccurately what cases come before the king's justices andhow they are decided. During the first half of John's reignthe country was decently governed, though the legislative andreforming activity of his father's day has ceased. But thenJohn casts off all restraints, becomes involved in a greatquarrel with the church, in another with the baronage, unitesthe whole nation against him, and at length in I 2 I 5 is forcedto grant the great charter.iv. Henry III (I 2 16-72).The great charter, from whatever point of view we regardit, is of course a document of the utmost importancea. TheI Pollock and Maitland, History of EnglzsA Law, vol. I, pp. 161-7,An admirable commentary on Magna Carta was published by W. S.McKechnie in 1905.Magnn Cartafirst thing that strikes one on looking at it is that it is a verylong document-and a good deal of its importance consists inthis, that it is minute and detailed. It is intensely practical ;it is no declaration in mere general terms of the rights ofEnglishmen, still less of the rights of men ; it goes throughthe grievances of the time one by one and promises redress.It is a definite statement of law upon a great number ofmiscellaneous points. In many cases, so far as we can nowjudge, the law that it states is not new law; it represents thepractice of Henry 11's reign. The cry has been not that thelaw should be altered, but that it should be observed, inparticular, that it should be observed by the king. Henceforwardmatters are not to be left to vague promises; theking's rights and their limits are to be set down in black andwhite. Apart from the actual contents of the charter, whichwe must notice from time to time hereafter, we ought tonotice that the issue of so long, so detailed, so practical adocument, means that there is to be a reign of law.Now Magna Carta came to be reckoned as the beginningof English statute law; it was printed as the first of thestatutes of the realm. But to explain this we have firstto remark that of Magna Carta there are several editions.We have four versions of the charter, that of 1215, thatof 1216, that of 1217 and that of 1225, and between themthere are important differences. Several clauses which werecontained in the charter of I 2 I 5 were omitted in that of I 2 r 6and were never again inserted. It seems to have been thoughtunadvisable to bind the young king to some of the morestringent conditions to which John had been subjected. Thecharter of 1217 again differs from that of 1216. Substantiallyit is in 1217 that the charter takes its final form; still it is thecharter of I225 which is the Magna Carta of all future times.That there were four versions is a fact to be carefully remembered;it is never enough to refer to Magna Carta withoutsaying which edition of it you mean. As we shall hereaftersee, the whole history of parliament might have been verydifferent, had not a certain clause been omitted from thecharter of 1216 and all subsequent versions-a clause definingthe common council of the realm.

Constitzdional HistoryNow the charter of I225 came to be reckoned as thebeginning of our statute law. This in part is due to accidents.The lawyers of the later middle ages had no occasion to gobehind that instrument ; the earlier ordinances so far as theyhad not become obsolete had worked themselves into thecommon law ; but every word of the charter was still of greatimportance. So when the time for printing came MagnaCarta, i.e. the charter of 1225, took its place at the beginningof the statute book. It was constantly confirmed; Henryconfirmed it in 1237 ; Edward confirmed it in 1297-thenceforwarddown to the days of Henry IV it was repeatedlyconfirmed ; Coke reckons thirty-two confirmations. It wasone thing to obtain the charter, another to get it observed.It was a fetter on the king, a fetter from which a king wouldfree himself whenever he could ; and the nation has to paymoney over and over again to procure a confirmation of thecharter :-that the king is bound by his ancestors' concessionsis a principle that is but slowly established.Magna Carta then, however ill it may be observed, constituteswhat for the time is a considerable body of definitelyenacted law. From the long reign of Henry I11 we have notmuch other legislation ; legislation is as yet by no means acommon event. The interest of the reign is to be found notso much in the laws that are made but in the struggle fora parliament. Gradually, as we shall see hereafter, the ideaof what the national assembly should be is undergoing achange ; it is ceasing to be that of a feudal assembly of barons,it is becoming that of an assembly of the three estates of therealm-clergy, lords and commons ; the summoning of knightsof the shire in 1254, and of representative burgesses in 1264are the great landmarks. Still there are two important legislativeacts. The first of these is known as the Statute ofMerton made in 1236. It contains provisions which are inforce at the present moment. Among its other noticeableclauses, we come across the famous declaration of the baronsthat they will not change the laws of England. They havebeen asked by the clergy to consent that children born beforethe marriage of their parents should be deemed legitimate :-their reply is 'Nolumus leges Angliae mutare.' Between thisLegal growth under Henry I(I 17and the next great act, there occurs the great crisis which weknow as the Barons' War. The discontent of the nation withHenry's faithlessness and extravagance comes to a head in1258. After stormy years of quarrelling, a leader is found inDe Montfort ; the insurgents are victorious at Lewes (14 May,1264), and then defeated at Evesham (4 Aug. 1265). But agreat deal of what they wanted is gained. The statute madeat Marlborough in I 267, commonly called the Statute of Marlbridge,chiefly consists of a re-enactment of certain concessionswhich had been obtained from the king during the revolutionaryperiod, concessions which we know as the Provisionsof Westminster of 125g1. The grievances redressed in thisinstance are for the most part the grievances of the smallerlandowners.But it is not only or even chiefly by means of legislationthat English law has been growing. The reign of Henry I11is the time when a great part of the common law takes definiteshape-in particular the land law. The king's court has beensteadily at work evolving common law; that law is carriedthrough the length and breadth of the kingdom by the itinerantjustices. As yet the judges have a free hand-they can inventnew remedies to meet new cases. Towards the end of thereign indeed complaints of this grow loud. It is more andmore seen that to invent new remedies is in effect to makenew laws ; that the judges while professing to declare the laware in reality making law ;-and it is more and more felt thatfor new laws the consent of the estates of the realm, at allevents of the baronage, is necessary. But law, judge-madelaw if we like to call it so, has been growing apace. Thejustices have been learned men, mostly ecclesiastics, mennot ignorant of Canon Law and Roman Law. A great lawbook is the outcome2. Henry of Bratton, or Bracton as he iscommonly called, died in 1268 ; for twenty years he had beena judge. Sometime between 1250 and 1260 he wrote histreatise on the Laws of England. He owed a great deal tothe work of an Italian lawyer, Azo of Bologna, and we canplainly see that the study of Roman law has had a powerfulPrinted in Stubbs' Select Charters, pp. 400-5.Pollock and Maitland, Hzslory ofEnglish Law, vol. I, pp. 206-10.

18 Constitutions l History PERIODinfluence on the growth of English law:-it has set men tothink seriously and rationally of English law as a whole,to try to set it in order and represent it as an organized bodyof connected principles1. But the substance of Bracton's workis English. He cites no less than 500 decisions of the king'sjudges. English law, we see, is already becoming what wenow call ' case law '-a decided case is an ' authority ' whichought to be followed when a similar case arises. We see alsothat the growth of English law, especially land law, has beenvery rapid. Glanvill's book looks very small and meagrewhen placed beside Bracton's full and comprehensive treatise.We may indeed regard the reign of Henry I11 as a goldenage of judge-made law : the king's court is rapidly becomingthe regular court for all causes of any great importance, exceptthose which belong to the ecclesiastical courts, and as yet thejudges are not hampered by many statutes or by the jealousyof a parliament which will neither amend the law nor sufferothers to amend it. Also we now hear very little of localcustoms deviating from the common law; as the old localcourts give way before the rising power of the king's court,so local customs give way to common law. The king's courtgains in power and influence because its procedure is moresummary, more rational, more modern than the procedure ofthe local courts. Their procedure is never improved, it remainsarchaic; meanwhile the royal court is introducing trial byjury ; all the older inodes of trial are giving way before thisnew mode. In 1215 the Lateran Council forbad the clergyany longer to take part in the ordeal. In England the ordealwas at once abolished, and the whole province of criminal lawwas thus thrown open to trial by jury.v. Edward the First (I 272- I 307).Edward I has been called 'the English Justinian.' Thesuggested comparison is not very happy; it is something likea comparison between childhood and second childhood. Justinian,we may say, did his best to give final immutable formto a system which had already seen its best days, which hadSelect Passages fronr the Works of Bracbn and Azo, ed. F. W. Maitland(Selden Society), 1895-with a brilliant introduction.The English Jz8stiniaucalready become too elaborate for those who lived under it.Edward, taking the whole nation into his counsels, legislatedfor a nation which was only just beginning to have a greatlegal system of its own. Still it is very natural that weshould seek some form of words which will mark the factthat Edward's reign is an unique period in the history of ourlaw. Sir M. Hale, writing late in the seventeenth century, saysthat more was done in the first thirteen years of that reign tosettle and establish the distributive justice of the kingdom, thanin all the ages since that time put together. We can hardlysay so much as this; still we rnay say that the legislativeactivity of those thirteen years remains unique until the reignof William IV; for anything with which we may compareEdward's statutes we must look forward from his day tothe days of the Reform Bill. Now Hale, I think, hits themark when he says that more was done to settle and establishthe distributivejzrstice of the ki?zga'uv~ in Edward's reign thanin subsequent ages1. The main characteristic of Edward'sstatutes is that they interfere at countless points with theordinary course of law between subject and subject. Theydo more than this-many clauses of the greatest importancedeal with what we should call public law-but the characteristicwhich makes them unique is that they enter the domainof private law and make vast changes in it. For ages afterEdward's day king and parliament left private law and civilprocedure, criminal law and criminal procedure, pretty muchto themselves. Piles of statutes are heaped up-parliamentattempts to regulate all trades and all professions, to settlewhat dresses men rnay wear, what food they may eat-ordainsthat they must be buried in wool-but we may turn page afterpage of the statute book of any century from the fourteenthto the eighteenth, both inclusive, without finding any changeof note made in the law of property, or the law of contract,or the law about thefts and murders, or the law as to howproperty may be recovered or contracts may be enforced, orthe law as to how persons accused of theft or murder may bepunished. Consequently in Hale's day and in Blackstone'sThc History of the Comnron Law of E*gZand, 4th edn., 1779, p. 152.

20 Constitutions Z History PERIODday, a lawyer whose business lay with the common affairs ofdaily life had to keep the statutes of Edward I constantly inhis mind ; a few statutes of Henry VIII, of Elizabeth, ofCharles I1 he had to remember, but there were large tractsof past history which had not supplied one single law whichwas of any importance to him in the ordinary course of hisbusiness. To a certain extent this is true even now, even afterthe vigorous legislation of the last sixty years. There are atleast two statutes of Edward I which you will have to knowwell-t he De donis conditisnalibus and the Quia emptoresterrarz~m-these still are pillars of our land law; to pull themaway without providing some substitute would be to bringthe whole fabric to confusion. It is well to remember thedates of the great statutes.1275. Stat. Westminster, I.I 278. Stat. Gloucester.1284. Stat. of Wales.1285. Stat. Westminster, 11.Stat. Winchester.1290. Stat. Westminster, 111.1297. Confirmatio Cartarum, with new articles.But Edward was not merely a great legislator, he wasa great administrator also, a great organizer. Take anyinstitution that exists at the end of the Middle Ages, anythat exists in 1800-be it parliament, or privy council, or anyof the courts of law-we can trace it back through a seriesof definite changes as far as Edward's reign, but if we goback further the object that we have had in view begins todisappear, its outlines begin to be blurred, we pass as ~t werefrom sunlight to moonlight, we cannot be certain whether thatwhich we see is really that for which we have been looking.Shall we call this court that is sitting, the King's Bench, orthe Council, or the Parliament? it seems to be all and yet tobe none of these. In Edward's day all becomes definitethereis the Parliament of the three estates, there is the King'sCouncil, there are the well known courts of law. Wordshave become appropriated-the king in parliament can makestatutes; the king in council can make ordinances ; a statuteI Growing Insularity 21is one thing, an ordinance is another. It is for this reasonthat any one who would study the constitution of older times,should first make certain that he knows the constitution as itis under Edward I.The vigorous legislation of the time has an importantconsequence in checking the growth of unenacted law. Henceforwardthe common law grows much more slowly than underHenry 111. Its growth is hampered at every turn by statutethejudges are checked by the now admitted principle thatchanges in the law are not to be made without the consentof parliament. Law continues to grow, but it can grow butslowly ; the judges are forced to have recourse to fictions andevasions because the highroad of judge-made law has beenbarred. Two law books come to us from Edward's reign,Britton and Fleta, both written in 1290 or thereabouts ; Brittonin French, Fleta in Latin ; both are little better than poorepitomes of Bracton's work, epitomes which take notice ofthe changes introduced by the great statutes. We learn fromthem an important fact :-it is plain that English lawyers areno longer studying Roman law. There can be no doubt thatunder Henry I11 Roman law was slowly gaining ground inEngland. To any further Romanization of English larv, astop was put by Edward's legislation. The whole field of lawwas now so much covered by statute, that the study of Romanlaw had become useless. About the same time, we no longerfind ecclesiastics sitting in the royal courts; Bracton was anecclesiastic, an archdeacon, and the great judges whose decisionshe cites were ecclesiastics-Martin Pateshull becameDean of St Paul's, William Raleigh became Bishop of Winchester.But the opinion steadily grew among the clergy thatecclesiastics should not sit in lay tribunals. The consequenceis that from the beginning of Edward's reign, English lawbecomes always more insular, and English lawyers becomemore and more utterly ignorant of any law but their own.Thus English law was saved from Romanism; by this welost much-but we gained much also. The loss, we may say,was juristic ; if our lawyers had known more of Roman law,our law-in particular our land law-would never have becomethe unprincipled labyrinth that it became;-the gain, we

22 Constitutional History PERIODmay say, was constitutional, was political :-Roman law hereas elsewhere would sooner or later have brought absolutismin its train. It should be added that the rapid growth of thecommon law under Henry I11 was connected both as causeand as effect with the growth of a large class of Englishlawyers. From the beginning of Edward's reign, it is a largeand a powerful class-and it is from among the members ofthis class that the king chooses his judges. And now a newform of legal literature appears. From 1292 we get our firstlaw report-the first of the Year Books. The Year Booksare reports of discussions which took place in court-of thearguments of counsel and the opinions of the judges. Theseries extends from Edward I to Henry VIII. Together withthe text-books of Glanvill, Bracton, Britton and Fleta, they arethe great source of all our information as to the commonlaw and not only are they a source of information, but the casesreported in them were regarded as authorities-indeed theyare so regarded even at the present day-if an occasion arisesupon which they could be appropriately cited :-but this ofcourse seldom happens, for the whole field of common law ispretty well covered by much more modern authorities. Stillwe note that from the middle of the thirteenth century ourcommon law has been case law, that from 1292 onwards wehave law reports, that from I 194 onwards we have plea-rolls'.This term common law, which we have been using, needssome explanation. I think that it comes into use in or shortlyafter the reign of Edward the First. The word 'common'of course is not opposed to 'uncommon': rather it means'general,' and the contrast to common law is special law.Common law is in the first place unenacted law; thus it isdistinguished from statutes and ordinances. In the secondplace, it is common to the whole land ; thus it is distinguishedfrom local customs. In the third place, it is the law of thetemporal courts ; thus it is distinguished from ecclesiastical1 Five volumes of the Year Books of Edward I, and thirteen volumes of theYear Books of Edward 111, are publ~shed in the Rolls Series. The Selden Societyhas undertaken the publ~cation of the Year Books of Edward 11. The first threevolumes, edited by Maitland, have already appeared, with introductions of thegreatest interest and importance.I Common Law 23law, the law of the Courts Christian, courts which throughoutthe Middle Ages take cognisance of many matters which weshould consider temporal matters-in particular marriages andtestaments. Common law is in theory traditional law-thatwhich has always been law and still is law, in so far as it hasnot been overridden by statute or ordinance. In older ages,while the local courts were still powerful, law was really preservedby oral tradition among the free men who sat as judgesin these courts. In the twelfth and thirteenth century as theking's court throws open its doors wider and wider for moreand more business, the knowledge of the law becomes moreand more the possession of a learned class of professionallawyers, in particular of the king's justices. Already inJohn's reign they claim to be juris periti. More and morecommon law is gradually evolved as ever new cases arise;but the judges are not conceived as making new law-theyhave no right or power to do that-rather they are butdeclaring what has always been law.B. The Land-System.It may seem strange that we begin our survey of publiclaw by examining the system of landed property, for proprietaryrights we may say are clearly a topic of private law.That is true in our own day, though even now it is impossiblefor us fully to understand our modern public law unless weknow something of our law of property:-for instance the rightto vote in elections for members of Parliament is clearly aright given by public law, but directly we ask, Who have thisright ?-we have to speak of freeholders, copyholders, leaseholdersand so forth, to use terms which have no meaning tothose who do not know some little of our law of landedproperty. But if this be true of our own day, it is far truerof the Middle Ages. What is meant by the word ' feudalism 'we shall understand more fully hereafter-but here we maydescribe ' feudalism' as a state of society in which all or agreat part of public rights and duties are inextricably interwovenwith the tenure of land, in which the whole governmental

24 C'onstitutionnl History PERIODsystem-financial, military, judicial-is part of the law ofprivate property. I do not mean that feudalism so complete asthis is ever found-much less that we find it in England,-weshall see that in this country the feudal movement was checkedat an early date :-but still it is utterly impossible to speak ofour medieval constitution except in terms of our medieval landlaw. Let us then briefly survey the land law of Edward 1'stime-briefly, and having regard to its public importance ;when you come to study real property law you will have toexamine the same system more closely and from anotherpoint of view'.We must start with this :-All land is held of the king.The person who has the right to live on the land and tocultivate it, is a tenant. He holds that land of some one whois his lord. If that some one be the king, then the tenant isone of the king's tenants in chief, or tenants in capite. Butbetween the tenant and the king there may stand manypersons; A may hold the land of B, who holds of C, whoholds of D, and so forth until we come to Z who holdsimmediately of the king, who is one of the king's tenants incapite. Each of the persons who stands between A and theking is a mesne, i.e. intermediate, lord ; as regards those whostand below him he is lord, as regards those who stand abovehim he is tenant. Thus take a short series; A holds of Band I3 holds of the king; here B is lord of A, but tenant ofthe king.Such is the actual arrangement. With it is connected thetheory that at some past time all lands were the king's to dowhat he liked with. He gave land to Z (one of his greatbarons) and his heirs in return for certain services, Z thengave part of it to Y, Y to X, and so on until we come to thelowest tenant, to A who now has the right to enjoy the landand take the fruits thereof. This process of creating newtenancies is called subinfeudation. At the moment at whichwe have placed ourselves, that of Edward's death in 1307, a newmeasure has very lately been taken to put a stop to this process,-thestatute Quia elnptores terrarurlz passed in 1290:' The subject of this section is treated with greater fullness in the History ofEnglish Law, vol. I, pp. 229-406.I The Land-Sys t em 25more of this hereafter. In passing let us warn ourselves notto accept this legal theory that there was a time when allland was the king's to do what he liked with as describing ahistorical truth; at present we note that it has become thetheory. No one therefore, save the king, has land that hedoes not hold of some one else-every other person hassome superior, some lord: the formula is tenet terrain iZZanede B.Now in every case the tenant in respect of the land owessome service to the lord-this in theory is the return he makesto his lord for the land-he holds by some tenure (te~zura) bysome mode of holding. Gradually these tenures have beenclassified :-we may reckon six tenures, (I) frankalmoign,(2) knight service, (3) grand serjeanty, (4) petty serjeanty,(5) free socage, (6) villeinage.(I) I mention frankalmoign first; it can be very brieflydismissed, but is instructive as showing how far the theory oftenure has been pressed. Sometimes religious bodies andreligious persons, monasteries, bishops, parsons, hold land forwhich they do no earthly service to the lord. They are said tohold by way of free alms, free charity, per Ziberam eZemosynam,in frankalmoign. The theory of tenure however is saved bythe doctrine that they owe spiritual service, that they arebound to pray for the soul of the donor who has given themthis land, and this duty can be enforced by spiritual censuresin the ecclesiastical courts. Do not think that a monasteryor a bishop can hold by no other than this easy tenure; onthe contrary, though a large part of England is held byecclesiastics, tenure in frankalmoign is somewhat exceptional-the ecclesiastics often hold by military service.(2) By far the greater part of England is held of the kingby military service, by knight service ; in some way or anotherit has come to be mapped out in knight's fees. We cannotsay that a particular acreage of land or land of a particularvalue constitutes a knight's fee (feodam militis); but it seemsas if there had been a vague theory that a knight's fee shouldnormally be worth £20 a year or thereabouts. But in Edward'sday we can say, that whether owing to some general rule or tobargains made in each particular case, it has become settled

Constitutional Historythat this particular territory owes the service of one knight,that it is feodum militis, while another has not been split intosingle knight's fees but owes altogether the service of five orof ten knights.The service due from a single knight's fee is that of onefully armed horseman to serve in the king's army for 40 daysin the year in time of war. We notice however that there hasbeen constant quarrelling between king and barons as to thedefinition of this service. Can the tenant be forced to servein foreign parts ? As a matter of fact they have done so: butin 1213 they refused to follow John to France and so forcedon the grant of the Charter, and very lately, in 1297, they haverefused to follow Edward to France and so forced on theconfirmation of the Charter. That they are obliged to serveagainst the Scots and the Welsh is not doubted.The tenant by knight's service, whether he holds of theking or of some mesne lord must do homage to his lord andmust swear fealty. The act of homage is this-the tenantkneels before his lord and holds his hands between the handsof his lord, and says, ' I become your man from this day forwardof life and limb and of earthly worship, and unto you shall betrue and faithful and bear to you faith for the tenements thatI hold of you '-then, if the lord be not the king, he adds thesenoteworthy words, 'saving the faith that I owe to the king.'Then the lord kisses his man. Fealty is sworn thus, withhand on book, ' Hear this my lord that I shall be faithful andtrue unto you and faith to you shall bear fcr the lands thatI hold of you, and that I shall lawfully do to you the customsand services which I ought to do, so help me God and hissaints.' The act of homage constitutes an extremely sacredbond between lord and man-the bond of fealty is not soclose-and an oath of fealty must be sworn in many cases inwhich homage need not be done. The nature of these bondswe shall consider at large by and by-happily for England theybecame rather moral than legal bonds.As a consequence of holding by knight's service the tenantis subject to many burdens which we know as the incidents ofmilitary tenure : it is usual to reckon seven ; each of them hasits own history.Aids and Reliefs(a) Aids. There has been a doctrine of vague extentthat the lord can legitimately demand aid (nz~xiliz~~z) from histenant when he is in need of money. The aid has been consideredas a free-will offering, but one which ought not to berefused when the demand is reasonable. Gradually the demandhas been limited by law. In the charter of I215 John wascompelled to promise that he would exact no aid without thecommon counsel of the realm save in three cases, namely inorder to make his eldest son a knight, in order to marry hiseldest daughter, and in order to redeem his body from captivityand then only a reasonable aid. The same restriction wasplaced upon the mesne lords. These clauses however wereomitted from a charter of I 2 I 6. In I 297 however Edward Iwas obliged to promise that he would take no aids save bythe common consent of the realm, saving the ancient aids.In I275 (St. West. I. c. 36) the amount of aid for knightingthe lord's son or marrying his daughter was fixed at20 shillings for the knight's fee, and the same sum for everyestate in socage of £20 annual value.(b) If the tenant in knight service having an inheritableestate died leaving an heir of full age, that heir owed a relieffor his land-releviz~m-a sum due on his taking up the falleninheritance-relevat hereditatem. This has been a sore pointof contention between the king and his barons, between themand their vassals ;-the lord has been in the habit of gettingwhat he can on such an occasion, even of forcing the heir tobuy the land at nearly its full price. Gradually the law hasbecome more definite The relief for the knight's fee isloo shillings, but the holder of a barony (a term to beexplained hereafter) pays £100; the socager pays one year'srent. This was already the law of Glanvill's time; it wasconfirmed by the charter (1 215, C. 2).But (c) the lords have contended for a certain or uncertainright of holding the land of the dead tenant until the heirshall offer homage and pay relief :-this right is that of takingthe first seisin after the tenant's death, the right of primerseisin. In this case law has gone against the lords, it \isestablished by the Statute of Marlborough (1267, c 16) thatthe lord may not seize the land, he may but make a formal

Constitutional Historyentry upon it in order to preserve evidence of his lordship.Law, however, has not had the same measure for the king asfor other lords-the king has a right of primer seisin-he maykeep the heir of his tenant out for a year-or what comes tothe same thing, he can in addition to the relief extort oneyear's profit of the land.(d) On the other hand there are rights of the lord whichhave steadily grown and which the law has now sanctioned.If the heir of the military tenant is under the age of twentyone,being male, or fourteen, being female, the lord is entitledto wardship-to wardship of the body of his tenant, to wardshipof the land also. This means that he can enjoy thelands for his own profit until the boy attains twenty-one orthe girl fourteen. He is bound to maintain the child and hemust not commit waste, but within these limits he may dowhat he likes with the land and take the profits to his ownuse-and this profitable right is a vendible commodity:wardships are freely bought and sold. Here again we findthat the king has peculiar rights-prerogative rights they arecalled. Generally, if the child holds of two lords, each lordgets the wardship of those lands that are holden of him ; butif one lord be the king, then he gets a wardship of all thelands, of whomsoever they be holden.(e) Connected with the right of wardship is the right ofmarriage. This we can see has steadily grown as we trace itfrom the charter of Henry I to the charters of John andHenry I11 and the Statute of Merton (1236). It comes tothis, that the lord can dispose of the ward's marriage, can sellhis ward in marriage. The only limit to this is that thematch must be an equal one; the ward is not to be disparaged,married to one who is not his or her peer. At first apparentlyall that the lord claims is that his female tenant shall notmarry without his consent-a demand which is reasonableenough while the military tenures are great realities :-myfemale tenant must not carry the land which she holds of meto a husband who is my enemy. But the right has grown farbeyond this reason :-it is now extended to males as wellas females, and the marriage of every ward is a vendiblecommodity.Fines and Escheats(f) Fines on alienation. Here the law has on the wholetaken the side of the tenant. We can produce no text ofEnglish law which says that the leave of the lord is necessaryto an alienation by the tenant. The tenant cannot indeedcompel his lord to accept a new tenant in his place; but hecan create a new tenancy ; B holds of A, B can give the landto C to hold of him, B. We do not find it laid down that theconsent of A was necessary for this ; the royal judges, like alllawyers, seem to have favoured free alienation :-but we dofind that the consent of the lords is commonly asked, and wedo find that the view taken by the lords is that their consent isnecessary. This is a battle-field during the thirteenth century ;the greater lords are opposed to free alienation, the tenantswish for it; the royal judges take the side of the tenants,except against the king. In 1290 a definite settlement isarrived at by the famous Qzdia emptores terrarzrm. Thatstatute you must some day study as part of our existing lawof real property. What it does is roughly speaking this, itconcedes free alienation to all except the king's tenants inchief; on the other hand it puts a final stop to the process ofsubinfeudation ; R holds of A, B wants to sell his land to C-he wants to convey it to C and his heirs; he can do so withoutA's consent, but C is not to hold of B, he is to hold of A.A tenant may substitute another person in his place-but thecreation of a new tenure is impossible-or rather, I must beexact though the words may be unintelligible to you-thecreation of a new tenure in fee simple is impossible. Theliberty of alienation however is not yet conceded to the king'stenants in chief; the law has one measure for the king anotherfor other lords. If one of the tenants in capite alienates withoutthe king's consent, this is a forfeiture of the land ; it isEdward the Third's day before this severity was relaxed anda fine of one-third of the yearly value of the land took theplace of the forfeiture.(g) Escheat. If the tenant died without an heir the landescheated, that is, fell back to the lord-it became his to dowhat he pleased with. As you have been hitherto readingmore Roman than English law, I had better say that theEnglish heir was and is to this day a very different person

30 Constitzztional History PERIODfrom the Roman Raeres. Before the Conquest the church hadintroduced the testament or last will, and lands or at all eventssome lands as well as goods could be given by will. But atthe Conquest the will of lands disappears. The maxim islaid down in Glanvill-Only God can make an heir, not man.The English heir therefore never succeeds under a will. Thisis so even at the present day, though since the Restoration,1660, lands have been freely alienable by will. To this daythe heir is a person who succeeds on an intestacy-he whotakes land under a will is a devisee: but at the time of whichwe are speaking, Edward 1's day, the will of lands was still inthe distant future. But a failure of heirs is not the only causefor an escheat, if the tenant commits any of those gravecrimesthat are known as felonies-there is an escheat; he loses theland, no heir of his can succeed him, the lord takes the landfor good and all.Such in brief were the incidents of tenure by knight's service.(3) Grand serjeanty (magna serjanfia) differed but littlefrom this. The tenant instead of being bound to serve as a knightfor forty days in the wars, was bound to do some peculiar servicefor the king-to carry his banner, or his sword, to lead thevanguard or the rear guard, to be his champion, the constableor marshal1 of his army, or the like. In almost all respects thistenure had all those incidents which we have just described.(4) Tenure in petty serjeanty came in after-time to be regardedas but a variation of tenure in socage. Its characteristicwas the obligation to provide the king with warlike implements,a sword, a lance, or the like. It maintains its place in thecatalogue of tenures merely because it was but slowly that theline was drawn between petty serjeanty and grand serjeanty. Itwas established by Magna Carta that where the service thoughof a warlike nature consisted merely in providing weapons, andnot in fighting-then wardship and marriage were not duehencea line was drawn between the grand serjeanties whichin all important respects were like knight service-and thepetty serjeanties which were almost the same as socage'.For Maitland's later views on serjeanties see Hzstory of English Law, vol. I,pp. 282-go. ' The central notlon seems what we may call servantship.. the tenantby serjeanty is steward, marshal, constable, chamberlain, usher, cook, forester,falconer, dog-keeper, messenger, esquire ; he is more or less of a menial servant.'I Socage Tenure 31(5) Postponing to a more convenient season the etymologyof the term socage, we find that tenure in free socage is atenure by some fixed service which is not military: that isnot the fill1 explanation, but will serve for the present Theservice of the socager generally consists of a rent payableeither in money or in agricultural produce; very often he isalso bound to do a certain amouht of ploughing for his lordtoplough three days a year or the like :-this is so commonthat lawyers already believe, what is not historically true, thatthe term socage is connected with the word sock, which meansa ploughshare. Now socage tenure involved some, but notall, of those burdens of which we have lately spoken-thesocager swore the oath of fealty, though he did not usually dohomage ; he had to pay the three aids-the aid for knightingthe lord's son, rnarrying the lord's daughter, redeeming thelord from captivity-in the first two of these cases he paid20 shillings for land of the annual value of L2o; by wayof relief he paid one year's rent ; if he held of the king inchief, the king was entitled to a primer seisin ; if he held ofthe king in chief he could not alienate without license; hisland escheated to the lord if he died without an heir orcommitted felony. On the other hand socage tenure did notinvolve the two worst burdens of feudalism ; the wardship andmarriage of the socager's heir did not belong to the lord. Ifhe left an heir under fourteen the next relative to whom theland could not descend was guardian, but when the heirattained fourteen (that was full age as regards socage) theguardian had to account to him for the profits of the land.We must not be led into speaking as though the distinctionsbetween these various kinds of tenures were distinctionsbetween various kinds of lands. The self-same piece of landmight at one and the same time be held by knight service orby socage. For instance A has held of the king by militaryservice, but he has enfeoffed 13 to hold of him in socage ; themilitary service due from A to the king is a burden on theland ; if A will not perform it, then a distress can be made onthe land and B's goods may be taken ; but as between A andR, it is A not B who is bound to do the service, or to pay thescutage ; A must indemnify B, if the king compels B to pay

Constitutional Historythe scutage; as between A and B, B is only bound to pay thefixed rent, to do the ploughing or the like. By far the greaterpart of the lands of England are, I take it, held of the king bymilitary service ; to find land held immediately of the kingby socage tenure is comparatively rare, but there seem to beconsiderable tracts which are held of the king by frankalmoign.The greater part of England therefore is held bymilitary service, but then a great part of this is held bysocage-the tenants in chief hold by knight's service, butmany of their sub-tenants hold by socage. Such is the stateof things in Edward's day; but as we have lately seen, in1290 a stop was put to the process of subinfeudation-a newtenure of an estate in fee simple can no longer be created-nonew rungs can be put into the feudal ladder. How far theprocess had really gone, it is difficult to say, but I think thatpretty often the lords and tenants stood three or four deep-wemay pretty often find that D holds of C who holds of B whoholds of A who holds of the king. By means of subinfeudationfree socage has become a far commoner tenure than it was inthe twelfth century; the lords have found it profitable togrant out their lands in return for fixed rents.One other remark of great importance must be mademilitaryservice is due to none but the king; this it is whichmakes English feudalism a very different thing from Frenchfeudalism. Suppose that A, a great lord, held 10 knight's feesof the king, he might grant one of these to B and stipulatethat B should do the military service due from that fee: Bthen will hold of A by military service; if B neglects to dothe service, then A has legal means of redress : B is bound toA to do the service ; still the service is due not to A, but tothe king ; it is service to be done for the king in the nationalarmy; it is not service to be done for A in A's quarrels.This makes English feudalism a very different thing fromcontinental feudalism : elsewhere we may find the tenantbound to fight for his lord in his lord's quarrels, bound evento fight for his immediate lord against that lord's lord ; herein England, however strong may be the feeling that this oughtto be so, that the man is bound to espouse his lord's quarrels,still that feeling is not represented by law-rather it isrepressed by law :-the only quarrel in which any one is boundto fight is the king's quarrel, the only force in which any oneis bound to serve is the king's force; our kings have beenpowerful enough to bring about this very desirable result.(6) Villeinage. A very large part of England, by whatevertenure it may be holden of the king, is ultimately held invilleinage. The word ville~zagiz~m is used in what seems to usa confusing way to cover two different things, first a personalstatus and secondly a tenure. There is a very large classof persons who are personally unfree. The technical termwhereby they are described is nativi, which means born serfsor bondsmen-thus A is the nativus of B; but not unfrequentlythey are spoken of as servi and as vilani. Theyare unfree, but we must not call them slaves; they are notrightless; the law does not treat them as things, it treatsthem as persons; still they are unfree; they must not leavetheir lord's land ; if they do he may recapture them and bringthem back ; the law will aid him in this ; it gives him anaction for recovering the body of his nativz~s, an action denativo hobendo. Generally, if not always, the nativus hasland which he holds in villeinage, which he holds by villeinservices. He has land, but how far he can be said to have aright in this land is a difficult question. One thing is cleartheking's courts do not protect that right against his lord.If the lord capriciously chooses to eject him, he has no remedyagainst his lord in the king's courts. We find however thathe is conceived to hold his land by perfectly definite servicesand that this is not merely the theory of the villeins, but thetheory of the lords also. This we learn from the surveys whichreligious houses made of their manors. In such surveys wefind thousands of entries of this kind-A.B. holds a virgateof land ; for this he is bound to do certain services, e.g. he isbound to work three days a week on the lord's land, and fivedays a week in autumn ; what is to be deemed a day's workis often minutely defined-thus, if he be set to thrash, he mustthrash such and such a quantity; if he be set to ditch, hemust ditch so many yards in a day-in general everything isvery definitely expressed. How far he can be said to beprotected in his holding so long as he does these his due

34 Constitutional History PERIODservices is a question which we cannot raise without firstspeaking of the manorial courts; but as already said, theking's courts give him no protection against his lord. Thenvery generally we find it said that he is prohibited fromselling his ox or his horse without the lord's leave, also thathe may not give his daughter in marriage without the lord'sleave, or at all events may not give her in marriage outsidethe manor; in many cases however the sum that he mustpay for the lord's license is a fixed sum. The king's courtshowever do not protect his movable goods against his lord,any more than they protect his land against his lord : the lordmay at any time seize the chattels of his nativz. Again thelord may imprison the body of his nativus ; the king's courtsgive no redress ; but against maiming and death at the lord'shand they give protection ; the life and limb of every man, behe free or unfree, are in the king's protection; to slay or tomaim him is a felony. Also it is becoming more and morethe theory and the fact that the king's courts will protect thenativus, his body, his goods, and his lands against every oneexcept his lord. The status of the nativus is coming to bemore and more regarded as a mere relationship between himand his lord, a relationship which in no wise concerns thirdpersons, less and less as a status thrust upon the nativusby public law which stamps him as a person who has butimperfect rights.But again, we find that a man may well hold land invilleinage and yet be no nativus. He is a free man, he mayleave the land if he pleases, he cannot be captured andbrought back, his chattels are fully his own, the lord may notseize them. Bracton often puts it thus : ' tenementum nonmzbtat staturn'-the tenure of villeinage is different from thestatus of villeinage-this man holds land in villeinage, butpersonally he is no villein. However such a tenant invilleinage has as yet no right in the land which the royalcourts will protect against the lord. Their doctrine is thatthe land is the lord's land, that the tenant is merely a tenantat the lord's will, whom the lord can at any time eject. Onthe other hand, as already said, we find it conceived, even bythe lords themselves, that their tenentes in villenagzo, eventheir nativi, held by perfectly definite services-so many day'swork per week, ploughings, harrowings, reapings and so forthto be done on the lord's own demesne lands. We find toothat these tenentes in vifleuagio do in fact alienate their lands ;they cannot do this without the lord's license ; they yield up,surrender the land into the lord's hand, who then grants it tothe new tenant. We find also that at least in some cases thetenant's rights are considered as inheritable; thus we find itsaid in the manorial surveys that the heir of the tenant invilleinage must pay this or that sum to the lord for leave toenter on his ancestor's land. How far such a tenant can besaid to have any legal right in his land as against his lord wecannot decide at present ; he certainly seems to be conceivedas having what we should call a moral right ; but the first thingto understand is that he has no right in the land as against hislord that is protected by the royal courts. This is so in thedays of Edward the First and for a long century afterwards1.It now becomes possible to fix the meaning of a term thatwe shall have often to use, viz. a freeholder. Ever since thedays of Henry the Second the king's own courts have affordedprotection to both the possession and the property which anyone has in a liberztm tenernenturn. Gradually a great mass oflaw has been developed as to the meaning of this term. Inthe first place it excludes the tenants in villeinage-Ziberzlrntenementum is contrasted with villanum tenementurn. If aperson holds in frankalmoign, by knight's service, by grand orpetty serjeanty, or in free socage, he has a freehold, and is afreeholder; not so he who holds in villeinage. What exactlywas the test which originally distinguished free socage fromvilleinage, it is now very difficult to see. Any uncertainty inthe agricultural service seems to have been enough to stampthe tenure as villein2. The tenant in free socage was oftenbound to do a certain amount of ploughing on the lord's land ;but generally he owed no week work, was not bound to workfor the lord so many days in every week as the tenant invilleinage commonly was. When once the line was drawn,1 For an elaborate discussion on the status of the villein, Hzstofy of EnghshLaw, vol. I, pp. 412-32.The test of villeinage is discussed by Vinogradoff, Econonzzc Jouutzal, vol. X('PI), P 308 ff.

Constitutional Historyhowever, it was of the utmost importance ; once decided thatthe tenure was freehold, it was perfectly protected in theking's own court ; once decided that it was villein tenure,then the king's courts treated it as though it were merely atenancy at the lord's will. Villanum tenementum is thus thefirst contrast to libemm tenementurn.But the evolution of new forms of landholding provided anew contrast. Since the Norman Conquest a practice hadgrown up of letting land for terms of years, in general shortterms. The lessee, 'the termor,' who had such a lease wasat first considered as having no right in the land, no realright, as we should say no right ia rem. He had merely apersonal right good against his lessor-his lessor had contractedthat he, paying his rent, should enjoy the land for aterm of years ; on that contract he had an action against hislessor. If a stranger ejected him, he had no action againstthat stranger; the lessor might sue the stranger for enteringhis (the lessor's) land; but the lessee had only an action onthe contract against his lord. While such was the case thelessee was not conceived to have Ziberum tenementum, he hadno tenementum at all ; he had but a right in persona~n. ; hewas no freeholder. The word freeholder therefore excludednot only the tenant in villeinage, but also the termor, the personwho had a right to enjoy land limited to some fixed term ofyears. Before the reign of Edward the First, the situationhad been greatly changed ; the king's court had by degreesgiven a large, though not as yet a complete, measure of protectionto the termor against the world at large: it had in factturned the jz4s in personarn into a jus in rem. Neverthelessthe old nomenclature with its important political consequenceswas still maintained-the termor was no freeholder, he had noplace in the county court, and therefore no vote in the electionof knights of the shire-no, not until 1832. A freeholdermust hold land at least for the life of himself or of some otherperson. He may have, as the phrase goes, a greater estatethan this, he may have an inheritable estate, one which willdescend to his heirs, or to a limited class of heirs, the heirs ofhis body-but this at least he must have. He who holds fora fixed term of years however long, a thousand years or more,is no freeholder.The distinction gets emphasized in another way. Whatevermay have been the law or various local customs ofinheritance which prevailed here before the Conquest, we maybe fairly certain that primogeniture was unknown; that if aman left several sons, his whole property, land and chattels,were as a genefeal rule divided among them all-though it isvery probable that land, especially land held on servileconditions, often went to the youngest son. Primogeniturecreeps in with the Conquest : very gradually a set of rules ofinheritance giving the whole land to the eldest male wheneverthere are males of equal degree was elaborated, and veryslowly it was extended from the lands of military tenants toother lands: that the land of the military tenant should notbe divisible is very intelligible. Before the end of Edwardthe First's reign the primogenitary rules had been extendedto socage tenure-this had been a slow process, but graduallyit had become established that he who contended that theinheritance should be divided among all males of equal degreehad to prove his case. Other systems endured merely aslocal customs : in Kent the inheritance was still heritableamong sons, and very commonly a tenement held in villeinagedescended to the youngest son'. But the gradual introductionof primogeniture, together with the principle that lands couldnot be left by will and the activity of the ecclesiastical courtscombined to set a deep gulf between what came to be calledreal and what came to be called personal property. Anexplanation of these two terms would take us too far afieldbutseize this principle, that for freehold and for chattels therecame to be two distinct systems of succession. The freehold(with which no ecclesiastical court may meddle) descends tothe heir, and only by force of some local custom can it be thesubject of a last will. The chattels can be left by will ; of alltestamentary matters the ecclesiastical courts have cognizance ;if there is an intestacy the heir does not get the chattels ; theyare distributed by the ecclesiastical courts. But further theterm of years, the right of a lessee to whom land has been letfor a term of years, is for this purpose a chattel ; it is assimi-For the custom of Borough English, as it was called, see History of EnglishLaw, vol. I, p. 647, and vol. 11, pp. 279-80.

38 ConstitutionaZ History PER~ODlated to movable goods; it is a new creation, and theecclesiastical courts have successfully asserted that it canbe disposed of by will-the term of years is a chattel andpersonal property. All this you will of course have to studymuch more thoroughly hereafter. The distinction betweenreal and personal property is still an elementary distinctionof profound importance at the present day. But it wasnecessary to say some little about it, for the word freeholdermust be constantly in our mouths.In the Middle Ages land law is the basis of all public law.You will already have observed how the system of tenureprovides the king with an army and with a revenue-menowe military service by reason of tenure, they pay aids, reliefs,scutages by reason of tenure, by reason of tenure the king getsprofitable wardships, and marriages, and escheats-he is thesupreme and ultimate landlord. But the influence of tenuredoes not stop here; the judicial system is influenced bytenure, the parliamentary system is influenced by tenure.Every lord claims a right to hold a court of and for histenants. This is an important principle, but we can hardlyspeak of its working until we have spoken of the courts olderthan feudalism-the courts of the shire and the hundred whichcontinue to exist during the feudal period.Now if we suppose a quite perfect feudal arrangement, thenall courts, all judicial and governmental organization, should bedetermined by tenure. The king as highest landlord shouldhave a court of his tenants in chief; they would sit as judgestherein, and they again would be the king's advisers; it wouldbe with their counsel and consent that the king would imposetaxes and make laws. Then again each of these tenants inchief would have his court of sub-vassals, who again wouldhave their courts. Further the sole connection between theking and these sub-vassals would be a mediate connection, onlythrough their lord would he control them. C who held of Bwho held of A who held of the king would not be the king'sman or have any place in a court or assembly over which theking presided; he would not even be A's man; he wouldnever meet or sit along with A's tenants on a footing oflegal equality ; he would owe no fealty or homage to any oneFrench and English Feudadistn. 39but his immediate lord, namely, B. This ideal of a perfectlyfeudalized society was pretty fully realized in France; noimmediate bond bound the vassals of the Duke of Normandyto the king of the French; they were bound to the Duke,and the Duke to the king. Happily this ideal is but veryimperfectly realized . in England, this we must constantlynotice ; but we ought carefully to keep this ideal in mind,for there have been powerful forces making for its realizationand they have had to be met not only by laws, but also bythe sword.C. Divisions of the Realm and Local Government.(i) England is divided into counties or shires. For themost part these units are already of very ancient date ; thoughsome of the Northern counties, in particular Lancashire, havebeen formed since the Norman Conquest. Already in Edward'sday the arrangement is in most respects that which at presentexists. Many, perhaps most, of these divisions are in theirorigin not divisions into which a kingdom of England hasbeen carved, but are units which once were independent statesbut have coalesced to form the kingdom of England ; Kent,Sussex, Essex, Middlesex, Surrey have had kings of theirown ; Norfolk and Suffolk are the settlements of North Folkand South Folk. As these old states by conquest fall togetherinto one great state, some part of their primitive organizationis left to them; to use a modern phrase, they are mediatized ;in some cases the old dynasty of kings became for a whilea dynasty of under-kings, sub-repli. In other cases the shiremay have been a division carved out of a larger whole, andorganized on the model of one of these mediatized kingdoms.At any rate before the Norman Conquest each shire had itsshire moot, which was a court of justice and to some extentalso a governmental assembly for the shire. In it the ealdormanhad presided. The ealdorman had been a national officerappointed by the king and the national assembly. The titleealdorman had, however, been giving way to that of eorl, andthe office had been tending to become a hereditary office.

Consf it utiona Z History PERIODShire and .Cherz~Every shire had by no means necessarily an ealdorrnan or eorlto itself; Canute had divided the kingdom into four greatearldoms ; but down to the time of the Conquest, this officerhad been the chief man of every shire that lay within itsterritory, the president of its court, the leader of its forces.He received a third part of the profits arising from the shiremoot, the third penny of the county, as it was afterwardscalled. Along with the ealdorman in the shire moot, the*bishop had sat; it was not until after the Norman Conquestthat a firm line was drawn between temporal and ecclesiasticalcauses, the two had been heard together in the ancient courts.But from a very remote period, the shire had had anotherofficer, namely the shire reeve, or as we say, sheriff. He seemsfrom the first to have been a royal officer, appointed by theking, and representing the royal authority. The ealdormanseems to have been considered as a national leader, the sheriffas a royal steward or bailiff, chiefly concerned with the protectionof the king's interests. The shire moot had seeminglybeen held but twice in the year. There seems little doubtthat originally every freeman of the shire had been entitledand bound to attend it, but long before the Norman Conquestthis right and duty seems to have been confined to the freeland-owners. The process whereby land-owning had takenthe place of personal freedom as a political qualification willcome before us hereafter, but we had better at once makea remark which is necessary if we are to understand medievalhistory. The right of attending courts and assemblies wasnot a coveted right ; we must think of it rather as a burdensomeduty, a duty which men will evade if they possiblycan. We see the class of landless freemen getting graduallyexcluded from all participation in public business ; but wherewe are apt to see a disfranchising process, a deprivation ofpolitical rights, they saw only a relief from public burdens,the burden of attending court or being fined for nonattendance.Now the Norman Conquest had not destroyed the shire orthe shire moot. There was a change of names. The Frenchdistrict which seemed most analogous to the English shirewas the cornitatus, the county, the district which had beensubject to the comes or count, and so the English shire becamea county. And the earl became in Latin documents,the comes. But this title or dignity was but seldom conferredby William or by his sons, and the earl of Norman times hasabout him but little of the character of a public officer or theruler of a province. The dignity was hereditary, though theheir did not acquire full possession of it until he was investedby the king, until he was girt with the sword of the county.He like his English predecessor was entitled to the thirdpenny of the county; but for the rest he seems from theConquest onwards to be rather a great nobleman, who usuallyholds large lands in the shire, than a public officer. To thisthe palatine earldoms are exceptions. The earl of Chesterbecomes almost a sovereign prince, so does the bishop ofDurham ; but on the whole the Norman kings seem to haveseen the danger of allowing official power and jurisdiction tobecome hereditary in the houses of the great feudatories :-it was not by means of earls, but by means of sheriffs, thatthey will govern the counties. After the Conquest, that ancientofficer, the sheriff, becomes in Latin documents the vicecomes,the vice-count; that was the continental title which seemedbest suited to describe him; but this must not induce us tothink of him as one who derives his power from the earl,or who in any way represents the earl : from first to last thesheriff is distinctively a royal official, a representative of kinglypower-and as the Norman Conquest greatly increased thekingly power, so it greatly increased the power of the sheriff.Even here the tendency, so m~rked in the Middle Ages, ofevery office to become hereditary, to become property, wasfelt, and just in a very few cases the shrievalty did becomehereditary; but on the whole the kings succeeded well inmaintaining their hold over the sheriffs, in treating themsimply as their officers and representatives. The sheriffs heldtheir offices at the king's will. In I 170 Henry I1 dismissedall the sheriffs of England and put others in their stead. Thesheriff had in truth become a provincial viceroy; all the affairsof the shire-fiscal, military, governmental, its justice andpolice-were under his control, and he was the president ofthe county court.

42 Constitutio 9 za Z History PERIODFor the Conquest had not destroyed the shire moot. Itbecame the county court. The Norman kings seem to haveseen its value as a counterpoise to feudalism. To a certainextent the feudal principle that all public rights and dutiesare connected with land holding had, even before the Conquest,modified the constitution of the ancient assembly, ithad become an assembly of free land-owners. After theConquest the qualification became more definite; the freeholderwas entitled and was bound to be present. But acourt formed by all the freeholders of a shire is not, you willsee, a court formed upon feudal lines. In such an assemblythe tenants in chief of the crown have to meet their ownvassals on a footing of legal equality ; a tenant may findhimself sitting as the peer of his own lord. This retentionof the old courts is of vast importance in the history ofparliament. In Henry 1's day the county court was held,as in the days of the Confessor, twice a year. More frequentassemblies seem to have become necessary. By the charterof 1217, it is ordered that the county court shall not meetmore often than once a month; monthly sessions seem tohave been common.For a long time after the Conquest the county court remainedwhat it was before the conquest, the great ordinarycourt of litigation for all the men of the shire. The growthof the feudal courts (of which hereafter) had to some extentdiverted business from it; on the other hand, the king usedit as a check on the feudal courts. At the petition of a suitorsuggesting that he could not get justice from the lord's court,the king would direct the sheriff to intervene and remove thecase into the county court. Gradually, however, the countycourt began to lose its importance as a judicial tribunal. Thiswas due, however, not to the rivalry of the feual courts, butto the ever growing vigour of the king's own court, whichbegan to throw open its doors to all suitors. Of this concentrationof justice something has been said already andmore must be said hereafter. But by the end of Edward I'sreign, the king's own courts had already practically becomecourts of first instance for all matters of much importance.The county court had jurisdiction in personal actions (i.e.IThe County Courtactions in which land or rights connected with land were notclaimed) up to 40 shillings, and jurisdiction in actions for landwhen default of justice was made in a feudal court, but inone way or another litigants could generally take their casesto the king's courts.Rut while the county court was thus losing its high placeas a judicial tribunal, it had been becoming the very foundationof the political constitution. When in the middle of thethirteenth century we find elected representatives called toform part of the national assembly, of a common councilof the realm, or parliament, they are the representativesof the county courts. They are not the representatives ofunorganized collections of men, they are the representatives,we might almost say, of corporations. The whole countyis in theory represented by its court. So much is this thecase that the language of the time draws no distinctionbetween the two-the same word comitatus serves to describeboth the county, the geographical district, and the assembly.The king in his financial necessities has treated with thecounties, long before the counties were ordered to sendrepresentative knights to parliament. But the corporatenature of the county, the identity of the county and thecounty court is best brought out by entries on the judicialrolls, entries which enable us to see the county in the daysof Richard and of John. The king's itinerant justices fromtime to time visit the counties; the whole county (totuscomitatus), i.e. the body of freeholders, stands before them ;it declares what the county has been doing since the lastvisitation; the county can give judgment; the county cangive testimony; the county can be punished by fines andamercements when the county has done wrong ; if the countyhas given false judgment, the county can be summoned toWestminster; four knights must be sent to represent it; hewho has suffered by its false judgment may challenge thecounty to fight; and the county fights by the body of thecounty champion. Even the principle of election has beenlong growing before the day when the county is called on toelect members of parliament. In I 194, for example, coronersare first instituted ; three knights and one clerk are to be

44 constitutional History PERIOD The Cozlnty Courtelected to keep the pleas of the crown1. These custodes placitorzmzcoronae, or coroners, are intended to act as checkson the sheriff; they are elected by the county court. Therehas even been a long struggle to make the sheriff an electedofficer, and at Edward's death this has for a moment beena successful struggle ; in 1300 he conceded the demand forelective sheriffs. This concession, however, was withdrawnvery soon after his death. Of the representation of the countycourt in parliament, we must speak hereafter; so also of itsjurisdiction as a court of justice; but we must learn to thinkof the county as an organized unity which has long had acommon life, common rights and common duties. The ideaof a corporation had not yet made its way into English law ;we must wait for the fifteenth century for that; had it beenotherwise, in all probability the county of the thirteenthcentury would have been recognized as constituting a corporation,a corporation governed by the body of freeholdersin the county court.(ii) The county or shire is divided into hundreds. Thenumber of hundreds in a shire varies very greatly, and thesize of the hundreds also is very different in differentparts of England. Thus there are 5 in Leicestershire, 9 inBedfordshire, 17 in Cambridgeshire and 63 in Kent. Thisdivision of the land into districts known as hundreds isof very ancient date-in all probability it has existed eversince the settlement of England by the German tribes. Similardivisions known as hundreds are found in various parts of thecontinent. It seems very probable that the German tribe wasfor military and judicial purposes subdivided into groups, eachof IOO warriors, and that our English hundreds represent thesettlements of such groups. In some parts of England, inthe north-east, Yorkshire and Lincolnshire, the district iscalled, not a hundred, but a wapentake-this is the nameboth of the district and of its court or assembly, and seemsThe Forma procedendi in placitis coronne regis (Select Charters, p. 260) isgenerally regarded as the origin of the coroner's office. Dr Gross (Hisfory of theO8ce of Coroner, 1892, and Srlect Cme~from Coroners' RoZ/s, 1896) claims to havefound earlier references. Maitland was unconvinced. , See Eng. Hist. Rev. VIII,758, and History of English Law, I, 519.to point to the time when the assembly was still a body ofarmed warriors, who marked their approval by clashing theirweapons. The hundred court or hundred moot of the Anglo-Saxon time seems to have been the court of ordinary jurisdictionfor the men of the hundred ; it, like the shire court,had both civil and criminal jurisdiction ; the relation of theone to the other we do not exactly know, but perhaps a suitorwas not entitled to go to the shire-moot, until the hundredmoot had made default in justice. It was held twelve timesa year.The Conquest did not destroy the hundred court; thefreeholders of the hundred were bound to attend it and tosit in it as judges. But in the twelfth and thirteenth centuries,it gradually lost business owing to that concentration of justicein the king's courts, of which mention has already been made.Before the end of Edward's reign, its competence in personalactions like that of the county court had been restricted tocases in which less than 40 shillings was at stake. But further,even before the Conquest, many of these courts had fallen intoprivate hands; the notion that all jurisdiction is the king'shad been formed, and the kings had freely given and sold theright of holding courts. To a great landowner this right wasvery profitable, it enabled him to keep his tenants in hand,and we must further remember that throughout the MiddleAges jurisdiction is a source of income-the lord of a courthas a right to the numerous fines and forfeitures which ariseout of the doing of justice. It is probable that in thethirteenth century most of the hundred courts had come intoprivate hands. In 1278 Edward made a vigorous attempt torecover the jurisdictions which had become proprietary; heinstituted a searching inquiry qzbo warranto, by what warrant,under what title, the lords were preSuming to exercise a jurisdictionwhich prima facie belonged to the king; and hisjustices succeeded in recovering a great deal of the jurisdictionby insisting that only under written documents or bylong prescription could a subject claim any larger jurisdictionthan that of the ordinary manorial courts. The ordinarymanorial courts, you will understand, had grown up underthe influence of feudal ideas and existed side by side with

46 Constitutions Z HistoryPERIODthe more ancient courts of the shire and the hundred. Alsowe must note that even when a hundred court had fallen intoprivate hands, the king's officer, the sheriff, had at leastgenerally the right to hold it twice a year for criminal cases.Twice a year it was the sheriff's turn to hold these courts,and a court so holden by him came to be known as thesheriff's tourn. When such courts as these were in privatehands, they were generally called courts leet. The court baronand the customary court of the manor are the outcome oftenure ; a court leet on the other hand has a certain criminaljurisdiction, jurisdiction in cases of petty offences, and it isnot the outcome of tenure-it must have its origin in a royalgrant, real or supposed ; this doctrine Edward has succeededin enforcing by means of his quo warranto inquiry1.In the general administration of the law, the hundred isan important unit. In particular it is important in the systemof trial by jury introduced by Henry 11. Each hundred isbound to present its malefactors ; this is done by means of ajury of twelve. It is a responsible unit in the police system ;from an early time, the hundred is bound to pursue criminals.Under the law of the Conqueror, if a man be found slain andthe slayer be not produced, the hundred is fined, unless it canprove that the slain man was an Englishman ; in other words,it pays a murdrum or murder fine unless there is a presentmentof Englishry. So again in Edward's day, the hundredshave lately been put under constables bound to see that themen of the hundred have proper armour for the pursuit ofmalefactors and the repelling of enemies. In very early timeswe hear a little of a hundred's ealdor, and it is possible thathe was an elected president of the county; but after theConquest, and probably before the Conquest, he has disappeared; the sheriff appoints a serjeant or bailiff (serviens,ballivus) for each hundred, who presides over the court, unlessthat court be in private hands, and is bound to look after allthe king's business within the hundred, the collection of taxes,fines, forfeitures and the like.1 For the whole subject of seigniorial jurisdiction, see History of English Law,vol. I, pp. 571-94.The Tow~ship(iii) The lowest unit in the governmental system is thetownship or vill ; the Latin word used to describe the geographicaldistrict is viZZa, while viZZata describes the peopleof the villa regarded as a collective whole. The township assuch has no court of its own, but it has many police dutiesto perform. It has duties in the apprehension of criminals,and can be fined for the neglect of them. When the king'sjustices visit the county, every township has to come beforethem. For this purpose, the township is represented byits reeve (praepositus) and four best men (quatuor melioreshomines), and its opinion is constantly taken as to theguilt or innocence of accused persons. We constantly readthat the township of (let us say) Trumpington (villata deTrumpington) says that A is guilty of the death of B, or thelike ;-if it says what is untrue, it is liable to be amerced.The representation of the townships in the local courts wecan trace back to the time of Henry I ; but in all probabilityit is of much higher antiquityl.Here it becomes necessary to take account of a principlethat we largely noticed when speaking of feudal tenure. Thejurisdictional constitution of England would have been amuch simpler matter to describe had there not grown upby the side of the ancient courts of the shire and the hundreda newer set of courts expressive of a newer principle-feudalcourts expressive of the principle that every lord has a rightto hold a court of and for his tenants. The obligation ofattending the lord's court, the obligation of doing suit of court,is one of the incidents of feudal tenure. This principle hasbeen slowly growing up : but seems an admitted truth in thetwelfth and thirteenth centuries.We find that very generally these feudal courts are courtsof manors; indeed the legal theory of later times asserts,though as I think without warrant, that only as part of amanor could such a court exist. Of the manor then we arecompelled to say a few words. We find (I am speaking ofl It would appear from a note in the MS that Maitland went on to speak of theTownship as a fiscal unit. What he may have said on this point may be gatheredfrom Domesday Book and Beyond, p. 147; and the Hislory of Ejzglish Law, I,PP- 560-7.

48 Constitutional History PERIODEdward 1's day) that England is full of manors. We cannotindeed say that the whole land is parcelled out into manors ;our law has no such theory as that all land is part of somemanor. Still manors there are in plenty. The name manor,manerium, has seemingly meant in the first instance merely anabiding place (manerium a manendo) ; it is closely connectedwith mansio ; it has been used more or less vaguely to signifya landed estate ; gradually it has gained a legal significance,it has come to imply the existence of a court. Now if wetake a typical maneriz~m of the time, we commonly find thatthere is in the first place a quantity of demesne land-land,that is, which the lord of the manor has in his own hand,which is in every sense his very own. Then there are landswhich are held of him by freehold tenants, who owe himservices : some of them perhaps are bound to do the militaryservice due to the king, others pay him rent in money orin kind, and perhaps are bound to aid him in his ploughing:these are free socagers. Then there are the tenants in villeinage,who owe week work and so forth, and by whose serviceshis demesne lands are cultivated. All these lands usuallylie together, and very often the manor is coterminous withthe township.For the free tenants of his manor, the lord keeps a court;generally by the terms of their tenure they are bound toattend this court at stated intervals, e.g. in every third week ;they owe suit to his court, debent sectam ad cgriam maneni:This idea seems indeed to lie at the root of the term socage,it is that of seeking or following; the socagers, sohemami,are bound to seek, follow, attend the court of the lord. Thegeneral principle seems for some time past to have been admittedinto English law-that if a man has freehold tenants,he may hold a court for them ; he may bind them by theirtenures to do suit to his court. Such a court then becomesthe proper court in which to demand any of the freehold landthat is holden of the manor-if I claim against you land which,as we both admit, is holden of A, then I must begin myaction in A's court, if A has one. But great inroads havebeen made upon this system of feudal justice. The hand ofHenry I1 has been felt. The principle just expressed has notI Court Baron and Court Customary 49been abrogated, but its importance has been greatly curtailed.In one way and another it has become very possible for litigantsto evade the manorial jurisdictions, to go straight tothe king's court, or having just begun the action in the manorcourt to get it removed into the king's court by a royal writ.Still these courts exist, and in Edward's day have not yetceased to do justice. Now such a court is constituted by thelord and his freeholders-they are the judges; he who owessuit of court is bound to go and sit there as a judge-aquestion relating to freehold land is decided by the peers ofthe tenure-the freeholder there gets the judgment of hispeers,jzrdicizmz pariz~m suowm. In later times such a courtis known as 'the court baron of the manor,' a phrase whichseems at first merely to have meant the lord's court, curiabaronis.But then again the lord had what, at least in later times,was regarded as a distinct court for the tenants in villeinage.This was called the customary court, and the principle wasestablished that in this court, unlike the court baron, the lord'ssteward was the only judge. I very much doubt whether thisprinciple was established in the thirteenth century. Manyimportant questions depend on this point; in particular thequestion how far the tenants in villeinage were protected intheir holdings. If really the lord's steward was the only judge,then they were protected only by the lord's sense of justice :it was otherwise if they got the judgment of their pares.However you must know the orthodox theory that the lord'ssteward was the sole judge. It was in this so-called customarycourt that all transfers of the lands held in villeinage wereeffected:-A wishing to put B in his place, surrendered theland into the lord's hand, who admitted B as tenant; A beingdead, the lord admitted B his heir. It became the practiceto enrol all these proceedings; we have a few manor rollsfrom Henry 111, a considerable number from Edward I.Copies of the entries relating to their lands were given to thetenants. Gradually, but this is not until a later day, the termtenant in villeinage gives way to tenant by copy of court roll,or copyholder ; the copies of the court roll are the evidencesof title that the tenant has. To look forward for a moment

50 Constitutional HistoryPERIOD Town.&@ and YiGGin order to finish this matter:-about the middle of the fifteenthcentury the king's courts begin to protect the copyholdereven against his lord ; the services again becomecommuted for money payments; after the discovery ofMexico the value of money falls very rapidly, these paymentsbecome trifling; at last the copyholder is almost as completean owner of land as is the freeholder :-but it is long indeedbefore the distinction ceases to be of political importancenotuntil 1832 does the copyholder vote for knights of theshire. The tenure still exists, a horrible nuisance as you willlearn at large some day.It should be noted that according to the orthodox legaltheory of the sixteenth century and of to-day, there can be nomanor without two freehold tenants, sufficient tenants, that is,to constitute a court baron. Whether this theory be of ancientdate, I very much doubt ; as a matter of fact, in the thirteenthcentury there are many maneria, so-called in legal documents,in which there are no tenants but tenants in villeinage.Our kings have succeeded in asserting and maintaining theprinciple that the feudal jurisdiction is a purely civil jurisdiction,that the fact of tenure does not give to the lord anycriminal or correctional jurisdiction over his tenants, or at leastover such of them as are free men. But as a matter of fact,either by means of royal grants purchased from kings in want ofmoney, or by means of usurpations so ancient that they can nolonger be called in question, very many of the lords exercisesome of that criminal and police jurisdiction which as a rulebelongs to the hundred and county courts. In the languageof later law books, and to use a term the origin of which issingularly obscure, they have established courts leet-courtswhich take cognizance of petty misdemeanours. Such courts,however, according to the legal theory of Edward's time, are nonatural outcome of tenure, like courts baron and customarycourts, but must be claimed by grant or prescription1.As a matter of fact, there is usually a close connectionbetween the manor and the township. Very usually the samegeographical district which from one point of view is a town-' 'The lord might also hold a court for his honour, for all his immediatetenants .... The Abbot of Ramsey may bring to his court at Broughton his frerholdtenants from seven counties.' Pollock and Maltland, Hirlory of English Law,vol. I, pp. 585-6.ship, is from another point of view a manor. Recent historianssee in the township a community which is far more ancientthan the manor ; a community which, so far as English historyis concerned, we may call primitive; a group of men or offamilies bound together, very possibly by kinship, whichcultivates land by a system of collective agriculture, which isor has been the owner of the land, which to a large extentregulates its own affairs, decides how the land shall be tilled,decides whether new members shall be admitted, has a township-mootin which such affairs are settled, though it has notwhat we should call a court of justice. In course of time, weare told, this primitive community has in general fallen underthe dominion of a lord, has become a community of tenants,and usually of tenants who hold in villeinage, has becomea manor. But still for the purposes of public law, in particilarfor what we may call police purposes, it is as a township,and not as a manor, that the state takes account of it, andwhen, as sometimes happens, the vill is not coincident withthe manor, it is the township and not the manor that mustanswer to the state for the apprehension of criminals and soforth. The two organisms exist side by side ; the older is notthoroughly absorbed in the newer.All theories, however, as to the early history of manorsand townships are beset by very great difficulties which at thepresent moment cannot be explained. What at present concernsus is that the state has fixed on the township, not themanor, as the unit responsible for good order. It is, I think,the theory of the thirteenth century and of later times that allEngland is divided into townships, that every bit of land liesin some vill, while it is not the theory that every acre of landmust belong to some manor. Again, and this may help toexplain the co-existence of township and manor, until lately,until 1290 it has been quite possible for landowners to createnew manors ; they could not be allowed to alter the policesystem of the country by the creation of new townships. Onthe other hand, as a matter of fact, it is difficdlt to find a townshipwhich is outside the manorial system ; the township isrepresented, we have said, by its reeve and four best men, butthe reeve is at least generally a manorial officer, a villein

52 Constitutional HistoryPERIODelected by his fellow villeins, who is answerable to the lord forlooking after the manor, and seeing that his fellow villeins dotheir due services; to have served as reeve is indeed regardedas a presumptive proof of personal villeinage1.(iv) Under the name of boroughs a certain number ofcommunities have attained to a higher stage of organizationthan that of the generality of townships. But this is a matterof degree; at no time before the year 1835 can we say thatthe constitution of the various boroughs is the same throughoutEngland, or even that it conforms to any one type. Therehardly can be a history of the English borough, for eachborough has its own history. That history largely dependson the charters that it has been able to obtain from the kingor from other lords, and the liberality of the charter hasdepended on the price that the burghers were ready to payfor it ; municipal privileges were only to be obtained forvaluable consideration. At the end of the thirteenth century,however, the time of which we are speaking, the privileges ofthe boroughs, the institutions which make it somethingdifferent from a mere township, may be summed up under thefollowirig heads.(a) Immunity from the jurisdiction of the ordinary localcourts. The borough has aspired to be a hundred all byitself-to be exempt therefore out of the jurisdiction of anyhundred court. When the king's justices visit the county, theborough is represented before it not by the reeve and fourmen, but by a jury of twelve, just as every hundred in thecounty is represented by a jury of twelve. Occasionally moreextensive immunities have been conferred, the borough isexempted out of the jurisdiction of the county court. Someof the richer and larger boroughs have gone even further thanthis-it has been granted to them that their burgesses maysue and be sued only in their own courts, and thus one cannotsue a burgess even in the king's court.(b) Coupled with this immunity is the privilege of havingcourts of its own, usually with the jurisdiction of a hundredcourt ; but the constitution of these courts varies greatly. InThese views are substantially unchanged in the History ofvol. 1, pp. 594-634.Enzlish Law,some cases the borough has already got itself free of themanorial system, and its courts are presided over by electedofficers; in other cases the borough is still a manor and itscourt is the lord's court held under the presidency of hissteward.(c) Very frequently indeed the borough has by this timepurchased the right of having its own elective officers-ballivi,praepositi, bailiffs or reeves, who stand on somewhat the samelevel as the bailiffs of the hundreds whom the sheriff appoints.Often again the burgesses have their own coroners, and in thisrespect are free from the organization of the county. In somecases the burgesses have already an elected mayor with amplerrights and powers than those of a bailiff or reeve.(d) Very generally the burgesses have acquired the rightto collect the taxes within the borough, and for this purposeto exclude the sheriff. For the ancient taxes they compoundwith a lump sum at the Exchequer-they are thus said tohold the borough in farm.(e) Very generally also the borough constitution is interwovenwith that of a merchant guild, an association ofmerchants which has by charter obtained the power of regulatingtrade. In some of the greater boroughs besides themerchant-guild, there are trade-guilds, or craft-guilds, theweavers' guild, the tailors' guild and so forth. A constitutionin which the merchant-guild is the ruling body of the town, isgradually, and in very various stages, supplanting a moreancient constitution which was simply that of a privilegedtownship or privileged manor.The city of London resembles rather a shire than a town-ship-already in Henry 1's day it has got so far as to havesheriffs of its own, nay more, it holds the county of Middlesexin farm; its elective sheriffs act as sheriff of Middlesex1. Tobe utterly and totally exempt out of the shire organization, tobe counties of themselves, to have sheriffs of their own, is oneof the ends for which the more ambitious boroughs arestriving, though in Edward 1's day none save London hasattained it.The Charter of Henry I to London is printed by Stubbs, Select Charters,p. 108.

54 Constitutiona l HistoryPERIODBoroughs which are also bishop's sees are distinguished 2scities (civitates), and their burgesses are citizens. The termcity tells us no more than this, it does not point to any higherdegree of municipal organization or independence than doesthe term borough (burgzis).In later times, in the fifteenth century and onwards, wecan arrive at a legal definition of a borough; the notion of acorporation has then been formed, a fictitious person, a juristicperson, which has rights and duties which are quite distinctfrom the rights and duties of its members. But this notion,though developed in the Canon Law, only made its way intoEnglish law by slow degrees1. The greater boroughs, however,of Edward's reign have already in substance attained to all oralmost all of those distinctive characteristics which the laterlawyers regarded as essential to corporate unity. Thesecharacteristics are five-the right of perpetual succession, thepower to sue and be sued as a whole and by the corporatename, the power to hold lands, the right to use a commonseal, and the power of making by-laws. Substantially thesecharacteristics exist, but as yet they have not been workedinto a theory by the conception of a fictitious person, who isimmortal, who sues and is sued, who holds lands, hasa seal of his own, who makes regulations for those naturalpersons of whom he is composed. The question what isthe constitution of this fictitious person, how he is made upout of natural persons, has not yet arisen. The borough isas yet no more a corporation, no less, than is the township,the hundred, or the county; and if the borough may be spokenof as having rights and duties, as breaking the law and beingpunished, this is true also of the county, the hundred, and thetownship.D. Central Government.We turn to the central government, the king and hiscouncils. This we are wont to regard as the main themeof constitutional law. We have here, however, postponed it,The idea is worked out in Maitland's Tou~?zsh$ and Boroz~gk, Cambridge,1897.I Cea f ra Z Government 55for it can hardly be understood without some preliminaryknowledge of the land law and of the local institutions. Nowat the end of Edward's reign we find several different centralinstitutions. In the first place there is the kingship; this isthe centre of the centre. Then there is that assembly of thethree estates of the realm, clergy, lords and commons, to whichthe name parliamenturn is coming to be specifically appropriated.Then again the king has a council (concilium) whichis distinct from parliament, and he has high officers of state,a chancellor, treasurer, constable, marshal and so forth. Thenagain he has courts, courts which in a peculiar sense are hiscourts: there is the King's Bench, the Common Bench, theExchequer. All these now are distinct and have their differentfunctions; but looking back a little way we see that theyhave not always been distinct, that a difference, for instance,between the king's council (concilium Regis) and the king'scourt (curia Regis) has but slowly been established. We willtake therefore a brief retrospect of the history of our centralinstitutions as a whole.(i) Before 1066.Among the German tribes described by Tacitus a kingshipwas by no means universal. In some cases the highest officersareprincipes elected by the tribe in its popular assembly ; inother cases the tribe has already a ?,ex; he also is elected,chosen it would seem because of his noble descent, but hispower seems to be very limited. Our own forefathers whenthey first attacked the province of Britain seem to have had nokings ; their leaders were ealdormen, in whom we may recognizethe principes of Tacitus. But the kingship appears verysoon ; the process of conquering a new country would be veryfavourable to its development. The small states which wereafterwards to coalesce into the kingdom of England, seem inother respects to have resembled the states described byTacitus. Each had its popular assembly, the assembly of allfree men, its principes or ealdormen elected in that assembly,and its king. The ealdorman presides over apagus or district;the ealdormen, under the king's presidency, meet to determinethe minor affairs of the state, but the weightier matters are

Constitz6tionaZ Historydiscussed in the folk-moot :-de minoribus rebas princ@esconsultant, de majoribz~s omnes.Gradually by conquest greater kingdoms are formed, atlast the English kingdom. The way for this was preparedby the acceptance of the Christian faith and the organizationof an English church. The old state which has thus beenabsorbed in a larger state does not lose its unity, it now existsas a shire of the new kingdom; sometimes the members of itsonce royal house continue to be its ealdormen ; its folk-mootstill exists, but now as a shire-moot, the county court of laterdays. The n,atianal asse~bly is not a folk-moot, not ana~emblypf the whole people, but a witenagemot, an assembly&the wise, the sapientes. This assembly when we look backat it seems a very unstable and indefinite body. 5t: comprisesthe bishops, and towards the end of the period we often finda number of abbots present. It comprisesalso the ealdormenof the shires ; their number varies according as the shires areadministered singly or in groups. Besides these there area number af peFsons who generally describe themselves asministri Regis, or king's thanes, and this number increases astime goes on. It can never have been a very large assembly.' In a witenagemot held at Luton in November, 931, were the2 archbishops, 2 Welsh princes, 17 bishops, I5 ealdormen,5 abbots and 59 ministri. In another, that of Winchester, in934, were present the 2 archbishops, 4 Welsh kings, 17 bishops,4 abbots, 12 ealdormen and 52 mitzistri. These are perhapsthe fullest extant lists1.' The question arises, who were thesemieistri or king's thanes ?Theprincefs of Tacitus has around him a train of warlikecompanions (comites). Jt is the duty of all men to fight ; thehost, as is often said, is the nation in arms ; but these comitesare more especially bound to fight and to fight for their leader;this is their glory; it gives them a high place in the estimationof the community. We can recognize them in the gesith,the companion, of our own kings, a name which graduallygives place to that of thane, or servant, in Latin fninister.A nobility by service is thus formed, and the thegnhood beginsStubbs, Constttuttoaal History, vol. I, 5 52.Growth of Fegdadismto be connected with the holding of land and to be hereditary.The unappropriated land, the land of the nation, the folk-land,forms a great fund whereout the king, with the consent of thewise, can reward his faithful followers1. The thane begins tolook somewhat like the tenant by knight service of later times,and the king's thane (for an ealdorman may have thanes) beginsto look like a tenant in chief. The definite idea of a militarytenure, A tenet de Rege per servicizmt unius militis, is notformed before the Conquest; but to an extent, and in amanner that is now very dark to us, the military service duecomes to be connected with and measured by landholding2.It is well to see that there were powerful economic causes inwhich this incipient feudalism had its roots. As agriculturebecomes higher, as the distribution of property grows moreunequal, as the art of war is developed, it becomes more andmore convenient that some should fight while others till thesoil : there is a division of labour, a specialization of employments.The work of feudalism goes on in the lowest strata ofsociety as well as in the highest. While the king is gatheringround him a body of armed vassals who are great landownersbecause they are vassals, the smaller men are putting themselvesunder the protection of lords, are content that theirlords should do the necessary fighting while they till the lord'sland. Dark as is the early history of the manor, we can seethat before the Conquest England is covered by what in allsubstantial points are manors, though the term manor .isbrought hither by the Normans. Furthermore, in the interestsof peace and justice, the state insists that every landless manshall have a lord, who will produce him in court in case he beaccused. Slowly the relation of man and lord extends itself,and everywhere it is connected with land. The king's thanesthen are coming to be the king's military tenants in chief.The term folk-la~d is now regarded not as denotlng public land, but as'land held without written title under customary law.' Histor~~ of Elzgltsh Law,vol. I, p. 62. The point was proved by Mr Paul Vinogradoff in 1893. Eng.Hisf. Rev. VIII, 1-17. This does not imply that there was no unappropriatedland, only that it was not called folk-Zatzd.Maitland throws some light upon th~s dark question in Domesday Book andBeyond, pp. 307-9.

Cotistitutiona Z HistoryWe cannot then arrive at any strict theory as to the constitutionof the witenagemat. It is an assembly af the greatfolk ; when there is a strong king on the throne it is prettymuch in his power to say how it shall be constituted, tasummon whom he will; whe-n th-e king is weak, it is apt tobecome anarchicd. It has even been contended by MrFreeman that every free man had in theory a right to attenditl; but it is difficult to believe that a theory was maintainedwhich was so flagrantly inconsistent with the actual facts. Atall events it is clear that really this assembly was a smallaristocratic body, tending always to become more aristocratic.The bishDps constitute its-most permanent and at times itsmost powerful element.Such then is the national assembly, and at least on paperits powers seem vast ; it-can elect kings and depose them ; theking and witan legislate; it is with the counsel and sonsent.of the witan that the king publishes laws ; the-king and witannominate the ealdormen and the bishops, make grants of thepublic lands, impose taxes, decide on peace and war, andform a tribunal of last resort for causes criminal and civil. Itis a supreme legislative, governmental, and judicial assemhly.Such terms as these, however, may easily raise a falsenotion in modern minds. The whole business of a centralgovernment is as yet but small. Legislation is no commonevent; as already said, all the extant dooms of kings andwitan would make but a small book. Taxation is still moreuncommon, of anything that can be called by that name wehear nothing until late in the day. The rents and profits ofthe public lands, the profits of the courts, afford a sufficientrevenue for such central government as there is. T_hft Banegeldef Eth&dls reign is pxhaps the first tax ; in gg I, 994,1002, 1007, 1011, a tribute was raised to buy off the Danishinvaders. Lastly, though we have clear proof that the witenagemotacted as a court of justice, it was no ordinary courtfor ordinary men ; recourse to it was not encouraged ; thenormal courts were the local courts, and suitors were forbiddento seek the royal audience until justice had failed them in thehundred and the shire.- Essays, 4th serles, pp. 444-7.Meanwhile the king's splendour grew as the extent of histerritory grew. From being merely the nation's leader, hebecame the lord of all men, and we may almost say the lordof all land and lord of all justice. While as yet almost alloffences can be atoned for by money payments, treasonbecomes an utterly inexpiable offence. The national landbecomes always more and more the king's land, and the king'sfavour is thus the source of honour and of wealth. What ismore, justice is regarded as being the king's, he can grantjurisdiction to whom he pleases, indeed a grant of land nowusually involves a grant of jurisdiction ; the hundred courtscome into private hands and manorial courts arise. This, themost dangerous element of feudalism, is rapidly developedtowards the end of our period; in particular Edward theConfessor seems to have been lavish in his grants of jurisdiction1.We have said, however, that the king's splendour grows,rather than that his power grows. Whether he will bepowerful or no depends now very much on his own personalcharacter. That lordship of land and of justice of which wehave just spaken, may be as easily a cause of weakness as ofstrength. Every grant that he makes of land or of jririsdictionraises up a new vassal, and unless the king's hand be heavyupon his vassals they may become too strong for him ; he mayend by being like the king of the French, primzrs i?zterpnyes,the nominal head of a turbulent baronage. The growth oflarge estates and private jurisdictions surrounds the greatthanes with tenants and retainers bound to them by a closebond of fealty. Every man, it is true, can be called upon toswear allegiance to the king ; but the king is distant and thelord is near.Even the fact that to the very end of the period the kingshipis not strictly hereditary, but elective-that on the Confessor'sdeath the witan can elect Harold-that a power alsoof deposing a king has been exercised as late as the days ofEthelred the unready, is really rather a mark of constitutionalweakness, of a dangerous feudalism, than of popular liberty:-' Donresday Book and Beyoxd, p. 87 ff.

CoizstitutionaZ Historythe crown itself may become the prize of the rebellious vassal.The really healthy element in the constitution as_jt stood onth_e eve of the Conquest lies here-that as yetno~nglish kinghas taken on himself to legislate or to tax without the counseland consent of a national assembly, an assembly of the wise,thit-is of the great. This is a valuable barrier against meredespotism, though what the national assembly shall be astrong king can decide for himself.(ii) I 066- I 154.William of Normandy claimed the throne as the heirnominated by the Confessor. That title the English did notadmit; it had not been law among them that a king mightappoint his successor. Harold was chosen king. The battleof Hastings was fought. William proceeded to seek therecognition of the divided and dismayed witan. He waschosen and was crowned, swearing that he would hold fastright law, and utterly forbid rapine and unrighteous judgment.It is needful to remember that neither of his sons came to thethrone by what we should think or even by what would thenhave been thought a good hereditary title, needful, for to thiswe probably owe the preservation of a certain form andsemblance of free government. Rufus excluded Robert andwas willing to make, though also to break, the most lavishpromises. Henry again excluded Robert ; he was hastily electedby a small knot of barons, took the oaths which Ethelred hadtaken, and purchased support by a charter of great importance,for it was the model on which the charter of 1215 was framed.'Know ye,' it begins, 'that by the mercy of God and thecommon counsel of the barons of the whole realm of EnglandI have been crowned king of the same realm.' Henry dead,the crown was seized by Stephen of Blois, to the exclusion, aswe should say, of the Empress Matilda. He was obliged tomake large promises at his coronation, and in I 136 to issue animportant charter, important rather as a precedent than asanything else, for a strong party favoured the Empress andthe feudal anarchy broke loose. In fact we may regard ourNorman kings as despotic ; when there is not despotism thereis anarchy; still a certain semblance of another form of govern-Tenants ilz Chiefment is maintained, government by a king who rules with thecounsel and consent of his barons.Now the typical feudal king, if we may make such anabstraction, should have a court consisting of his immediatevassals, his tenants in chief. How much or how little he willbe influenced by them, whether they will be utterly powerlessor whether he will be but the first among equals is a differentquestion-but such control over him as there is will be thecontrol of a court thus formed. It would seem then accordingto this idea that the court of the English king should haveconsisted of his tenants in chief. But the tenants in chiefwere in England very numerous : this was the result of theConquest and the subsequent grants of lands deemed forfeited-they were not just a few rulers and owners of vast provinces ;there were a large number who held single knight's fees andsingle manors holden directly of the king. This shouldbe remembered, for it affects the constitution both of theHouse of Lords and of the House of Commons in laterdays. The body of military tenants in chief was from thebeginning a very heterogeneous body. If it included greatfeudatories with vast possessions and numerous vassals, whomight aspire to play the part of sovereign princes, it includedalso a large number of men who were by no means very richor very powerful. This must have rendered it practicallyimpossible that the king's court should have become a powerfuldefinite body formed strictly on feudal lines. The Conquerorwe find holds an ordinary court three times a year at the threegreat festivals. 'Thrice a year,' says the Saxon Chronicle,' King William wore his crown every year he was in England ;at Easter he wore it at Winchester, at Pentecost at Westminster,and at Christmas at Gloucester; and at these times all themen of England were with him-archbishops, bishops andabbots, earls, thegns and knights.' A similar usage was maintainedby his sons though the rotation thus described wasnot strictly observed. When however we ask who actuallyattended ? still more if we ask who had a right to attend?we get a very uncertain answer. The passage in the Chronicleto which I have just referred is a specimen of the vague statementswhich are all that we get-all the men of England were

Constitutional Historywith him-archbishops, bishops and abbots, earls, thanes orknights ; often we are put off with some such word asproceyes,which has a very uncertain sound. The archbishops, bishopsand abbots attend by virtue of their official wisdom, but thetheory seems always to gain ground that they are there becausethey hold baronies of the king-at any rate they becometenants in chief and so for them there is certainly a place.As to the other persons who come, so far as there is any legaltheory, it must be that they are the tenants in chief. Probablyit is fully acknowledged that the king may lawfully insist onthe presence of every tenant in chief-probably it is the generalopinion that every military tenant in chief has a right to bethere. But we ought to remember that attendance at courtis no coveted privilege. We must be careful not to introducethe notions of modern times in which a seat in parliament iseagerly desired. This would render a good deal of historyunintelligible. For the smaller men attendance at court is aburden of which they are very ready to relieve themselves orbe relieved, and this is true, be the court in question thehundred court, or the county court, or the king's court.What seems to us from the modern point of view a valuablepolitical right, seemed to those who had it an onerous obligation.The great baron again had no particular desire to beabout his lord's court; if, as was too often the case, he wasnot very faithful to Iiis lord, his lord's court was the very lastplace in which he would wish to be. In point of fact wedo not hear from the Norman reigns any assertion of anindividual's right to attend the court. The king insists onbringing around him the most powerful of his tenants inchief, and such meetings are to him a source of strength. AsMr Dicey has pointed out in his Essay on the Privy Councilit is the strong king who habitually brings his magnatesround him. He thus keeps his eye upon them, and itstrengthens his hands in dealing with the refractory that hismeasures are taken with the counsel and consent of theirpeers.Under the Norman kings counsel and consent may havebeen little more than formality, and the king may haveexercised the power of summoning only such of his tenantsThe Curia Regisin chief as he pleased-still such few legislative acts as wehave from this period are done with the counsel and consentof the great. Thus the ordinance which removed the bishopsfrom the secular courts and recognized their spiritual jurisdictionwas made with the counsel of the archbishops, bishops,abbots, and all the princes of the kingdom. But anythingthat could be called legislation was seemingly very rare. Theright of the council to join in taxation was perhaps admittedin theory. Henry the First speaks of an aid which had beengranted to him by his barons : but there is nothing to showthat any such consent was asked when the Danegeld waslevied as repeatedly it was, and the king exercised the powerof tallaging his demesne lands of his own free will. A courtof this nature was again the highest court of judicature, forthe great cases and the great men. It was in such courts thatthe king nominated bishops until the right of canonical electionwas conceded by Henry I, and even then the election took placein the royal court. The ceremony of conferring earldoms andknighthood and receiving homage were performed there;questions of general policy, of peace and war,of royal marriagesand so forth seem to have been debated.But a smaller body collects round the king, a body ofadministrators selected from the ranks of the baronage andof the clergy. At its head stands the chief-justiciar, the king'sright-hand man, his viceroy when the king is, as often he is,in his foreign dominions. There is also the king's chancellor,the head of a body of clerks who do all the secretagal work ;there are the great officers of the royal household and otherswhom the king has chosen. Under Henry I this body becomesorganic ; the orderly routine of administration begins even tobe a check on the king's power ; Stephen discovers this whenhe quarrels with the ministerial body. This body when it sitsfor financial purposes constitutes the Exchequer (Scaccaritlm),so called from the chequered cloth which lies on the table,convenient for the counting of money. Also it forms acouncil and court of law for the king, it is curia Regis, theking's court,and its members arejustitiarii, justiciars or justicesof this court. Under Henry I they are sent into the countiesto collect taxes and to hold pleas; they are then justitiarii

64 Coastitutiona Z History PERIODerrantes, justitiarii itinerantgs. During the whole period theterm curia Regis seems loosely used to cover both the sessionsof this permanent body and the assembly of the tenants inchief; the former may perhaps be regarded as a standingcommittee of the latter.(iii) I 154-1216.The reigns of the first three kings of the Angevin houseform another and a fairly definite period in the history of thenational assembly-which ends with the Great Charter of1215. In its fourteenth clause we obtain for the first time somethingthat may be called a distinct definition of that body.The twelfth clause declares that no scutage or aid shall beimposed in our realm save by the common counsel of ourrealm, ilzisi per conzmurze consiLiztm regni nostri-except thethree ordinary feudal aids for redeeming the king's bodyfrom captivity, for knighting his eldest son, and for marryinghis eldest daughter. There follows this-' And for thepurpose of having the common counsel of the realm forassessing an aid except in the three cases aforesaid we willcause to be summoned the archbishops, bishops, abbots,earls and greater barons (majores ba?*oaes) singly (sigillatim)by our letters ; and besides we will cause to be summoned byour sheriffs and bailiffs all those who hold of us in chief; for acertain day, that is to say, at a term of forty days at least;and to a certain place ; and in all the letters of such summonswe will express the cause of the summons.' Leaving out ofsight, for a time, the clerical members of this body, we seethat the national assembly is an assembly of the king's tenantsin chief. But we see an important distinction; while thearchbishops, bishops, abbots, earls and greater barons are tobe summoned severally by letters addressed to them directly,the other tenants in chief are to be summoned not by namebut by general writs addressed to the sheriffs. Now thisdistinction has been the subject of much disputation. It ismentioned in the Charter as an already well understooddistinction, as one already recognized in practice ; the difficultyhas been to find its foundation-what makes a man a baromajor? The principle cannot be found in feudal theory,Greater a~zd S?~zaZZer Baronsfeudally all these persons stand on the same level, they aretenants in chief whether they hold whole counties or singleknight's fees. One small class may be definitely marked off,namely the earls. The earl of the Norman reigns is definitelythe successor of the earl of the days before the Conquest, whoagain is the successor of the older ealdorman. To a certainextent under William and his sons the earldom was still anoffice implying a considerable though somewhat vague powerin the county which gave to the earl his title : but it had becomeless and less of an office, more and more of a mere dignity.The royal policy had been to prevent great jurisdiction fallinginto the hands of powerful nobles, and to rule the shires bysheriffs strictly accountable to the king and removable at amoment's notice. The earls, however, are a quite distinct classand a small class, for the title had not been lavishly given.As to the title of baron (baro) the clause before us is quiteevidence enough, were there no other, that it was notconfined to those who were entitled to the special summons,for this distinguishes not the barones but the barotzes majores.It would seem that at this time the title baron covered all themilitary tenants in chief of the crown. This is in accordancewith the original meaning of the word-baro is simply man :this meaning it long kept in our law French : husband and wifeare baron and feme; but man is the term opposed to lord;the man does homage to his lord, homilzizim or homagium, fromhomo a man; and it seems somewhat of an accident that whilewe speak of the homage of a manorial court, meaning therebythe body of tenants owing suit and service, we speak of thebaronage of the king's court; the king's tenants in chief arehis homiilzes and his barones also. A line has then been drawnwhich divides these persons into two classes :-this probablyis a result gradually attained by the practice of a century.The greater men had paid their feudal dues directly to theking's exchequer, the smaller had paid through the sheriff;the greater when serving in the army brought up their retainersunder their own banners, the smaller served under the sheriff;the greater were summoned to the king's court directly, thesmaller through the sheriff. But when we ask what greaterand smaller mean, we can give no precise answer. In particular

66 Constitu f io~zal History PERIODwe cannot say that a certain definite extent or value of landwas either necessary or sufficient to make a man entitled tothe special summons. Then again in this same Magna Cartawe find a distinction as to reliefs, the heir of the baron is topay for an entire barony (haronia) a hundred pounds, oraccording to some copies a hundred marks, the heir of theknight holding in chief of the king is to pay a hundredshillings for the knight's fee. It seems that the baro who hasa baronia in the one clause is the baro major who is to have aspecial summons in the other clause. The process of narrowingthe import of the word baron to those who are entitled tothe special summons goes on during the following century.Tenancy in chief is not sufficient now to give a man this titleof baro ; he may hold in chief and yet be merely miles. Theestate of the baron is a barony, but though there may be atheory floating about that the barony is or should be relatedto the knight's fee as the mark is related to the shilling, thatis to say, that the barony should consist of thirteen knight'sfees and a third-still it seems certain that an estate of thisvalue was neither necessary, nor in itself sufficient, to entitlethe holder to the special summons. Certain particular estateshad come to be regarded as baronies and to pay the heavierrelief, we can say very little more.During the period which ends with the charter we havelittle evidence as to the constitution of the national assembly.The earliest writ of summons that we have is one addressedto the Bishop of Salisbury in 1205 ; of general summonses sentout through the sheriffs we have none preserved; but verypossibly throughout the reign of Henry thesecond the assemblyhad been constituted after the fashion prescribed by thecharter. During that reign councils had been frequent;Henry was a strong king, not afraid of meeting his vassals,with a policy of his own and a policy which required theirsupport. Some great laws, I may remind you, were made inhis reign, though the text of them has too often perished-theConstitutions of Clarendon, the Grand Assize, the Assizes ofClarendon and Northampton. He professedly legislates bythe counsel and consent of the archbishops, bishops, barons,earls and nobles of England-by the petition and advice ofI Taxatiog and Consetzt 67his bishops and all his barons and so forth. The counsel andconsent may still have been little more than a ceremony-theenacting power was with the king-and he could put in respiteor dispense with the ordinances that were issued. The tyrannyof John after the discipline of Henry was what was needed toturn this right of joining in legislation into a reality. In formthe Charter is a Charter, a free grant by the king, in reality acode of reforming laws passed by the whole body of bishopsand barons and thrust upon a reluctant king.It is not very clear that in theory the consent of thenational council had been necessary for taxation or that ithad been in fact granted. Henry the Second takes a scutageor an aid or a carucage ; the chroniclers do not say that theconsent of his council or his court has been given or asked.The feudal theory that the man makes a free-will offering torelieve the wants of his lord seems to have subsisted; theconsent which theory requires is rather a consent of theindividual taxpayer than that of the national assembly. Thenotion that the majority of an assembly could bind a recalcitrantminority or could bind those who were not presenthad hardly been formed and would have been as unpopular asthe notion that the king himself can extort just what he wants.We begin to hear of opposition to taxation: in I 163 Becketprotests, in I 198 Bishop Hugh of Lincoln. But these protestsof S. Thomas and S. Hugh are rather the protests of individualswho will not pay a tax to which they have not consented,than assertions that the power to tax is vested in the nationalassembly. The necessity however of extending taxationfrom land to movables occasions a new organization anda new order of ideas. The Saladin tithe of I 188 is perhapsthe first attempt to tax personal property1. Henry obtainedfrom a great national council a promise of a tithe for thecrusade ; the assessment in such a case could not be left to atransaction between the individual taxpayer and the royalofficers, so Henry's favourite machinery, a jury of neighbours,was employed; in I 198 this plan was applied to the assessmentof the carucage, the land tax levied on the carucate or plough-1 Select Charters, p. 160.

68 Constit utiona Z History PERIOD The Judicia Z Systemland which had superseded the Danegeld l. Thus taxation andrepresentation are brought into connection-the individual isassessed by his neighbours, by a jury representing his parish,and so in some sort representing him. The idea that representationshould accompany taxation gains ground as personalproperty is brought under contribution. In 1207 Johnattempted to exact a thirteenth of movable property. Thebishops refused this on behalf of the clergy ; John had to giveup this plan of taxing them. The great crisis followed andthe charter was won. No scutage or aid, save the three regularaids, was to be levied without the common consent of the realm.Other forms of taxation, taxes for example on movables, werenot mentioned, nor could the national assembly, as defined inthe fourteenth article, be considered as adequately representingall classes: it was an assembly of prelates and tenants in chief.This however was but a stage, and the principle that representationshould accompany taxation was already outgrowingthe terms in which for the moment it was defined. Alreadyin 1213, two years before the charter, an assembly for thediscussion of grievances had been held at S. Albans, to whichwere summoned not only the barons and bishops but also abody of representatives-four men and the reeve from eachtownship on the royal demesne; already a few months later,on 7 Nov. I 2 I 3, John had summoned to a council at Oxford,four lawful men of every shire, ad Zoquendum nobiscum denegotiis repi ~zostri. These are the first recorded examplesof the appearance of local representatives in the nationalassembly. Eighty years were yet to pass however beforea representation of the commons or the communities of therealm would become for good and all a constituent elementof that great council of the realm which had meanwhile gottenthe name of a Parliamenturn.Meanwhile the administrative and judicial body, the curiaRegz's in its narrower sense, has been growing more definiteand has been splitting up into various bodies with distinctfunctions, all under the control of the justiciar and theking. There is the Exchequer, a fiscal bureau, and courtof law for all matters affecting the revenue-the judges in itl Select Charters, pp. 256, 7.still keep the title barones Scaccarii, although they are by nomeans always chosen from the ranks of the baronage. Thereis the Chancellor who keeps the king's great seal and whostands at the head of a clerical establishment, the royalchancery. There is now a small compact body of judges,justices of the king's court, professionally learned in the law.The judicial work has enormously increased owing to the lawreforms of Henry 11. This judicial body again is splittinginto sections. One party of justices attends the king in hisprogresses, and here we see the beginning of the court ofKing's Bench, another sits term after term at Westminsterand is going to be the Court of Common Pleas-for the GreatCharter concedes that common pleas, i.e. suits between subjectand subject, are not to follow the king's person, but are to beheard in some certain place. But a reserve of justice remainsin the king to be exercised by him in the great council of thenation, or in some smaller council. Judicial visitations ofthe counties, eyres, itinera, have become very frequent-theroyal courts are becoming the courts of first resort for mostcases; but the old local courts are brought into connectionwith the king's courts by these visitations. When the justicesin eyre come into the county, the whole county must comebefore them ; every freeholder must be there or send excuse,every hundred, every borough, must be represented by its juryof twelve, every township by the reeve and four men1.(iv) 1216-95.After I 215 the next great halting-place in the history ofthe national assembly is the year 1295. In the latter yearthere is, we may say definitely, a parliament ; the great outlineshave been drawn once for all. During these eightyeventful years a new principle has emerged and becomedominant. The assembly contemplated by the first editionof the great charter is a feudal assembly. It may be questionedperhaps in what right the archbishops, bishops and abbots finda place there-whether as the heads of the national church or1 For an elaborate survey of the judicial system at the end of Henry 11's reignsee Maitland, Srlcct Ph of th Crown (Selden Soc.), Intr.

Constitutional History I Ref resent ation 71as great vassals of the king ; they were both ; but the assemblyis a court of tenants in chief. Now we can hardly say thatthe clauses of the charter which require the consent of anassembly of this kind to the imposition of a scutage or aidever became part of the law of the realm. They were notrepeated in any later edition of the charter. Henry 111at his coronation was a child in the hands of WilliamMarshall the great Earl of Pembroke, rector regis et regni, thehead of the English baronage, and the king's guardians andministers may have thought it undesirable that their handsshould be bound by such clauses at a moment of grave perilwhen the foreigner was in the realm, and bonds may haveseemed needless. This is not to be regretted; had theseclauses become a permanent part of the law Parliament mighthave formed itself on strictly feudal lines ; we might have hadthe Scottish parliament instead of the English. As it was,the necessity for raising money forced the king to negotiatewith all classes of his realm. Henry was a thriftless, shiftlessking, always extravagant and always poor. The meetings ofthe national assembly during his reign were many. Probablythey were summoned in accordance with the principle laiddown in the charter of 1215, the major barons being summonedindividually, the lesser tenants in chief by general writsaddressed to the sheriff. To such an assembly, held on theoccasion of the king's marriage in I 236, we owe the Statute ofMerton. These meetings were realities ; counsel and consentcould no longer be taken for granted ; under John the baronagehad learned to act together as a whole. Demands for moneyare met by demands for reform-demands which sometimesseem startling even to us. From I234 onwards Henry wastrying to rule without great ministers, without justiciar,chancellor, or treasurer. The scheme which from time totime pleases the baronage is that of a small number of ministersor counsellors appointed by and answerable to the commoncouncil of the realm. Henry was lavish with promises whichare always broken.Meanwhile the representative principle was growing. Thenotion of the representation of a community by some of itsmembers must have been old. Already in the Leges HenriciPrjmj we find that in the local courts the townships arerepresented by the priest, the reeve and four of the bestmen1. This usage may already have been very old. Certainlyat a little later date we find that the county court when summonedin all its fulness to meet the king's justices in theireyres comprises not only all the free tenants of the shire, butalso a representation of the boroughs and townships, fromevery township four lawful men and the reeve, from everyborough twelve lawful burgesses2. The whole system of trialby jury in its earliest form implies representations-a personis tried by the country, by the neighbourhood, yonit se superpatriam, super vicinetum. The voice of the jurors is theverdict of the country, veredictum patriae. When we lookat the eyre rolls of this time (there are plenty of rolls fromthe first years of Henry 111) we are struck by the deeproot which this notion has taken :-the whole county ispresent and can speak its mind, every hundred is present,every township-the hundred of Berkeley says this, thetownship (villnta) of Stow says that; the county, thehundreds, the townships can be amerced and fined for neglectof their police duties or for saying what is false. Butrepresentation does not necessarily imply election by therepresented ; representatives may be chosen by a publicofficer or by lot. However in I 194 we find that the juriesfor the various hundreds are appointed thus: four lawfulknights are elected from the county, who choose two lawfulknights from each hundred, who again choose ten lawfulknights from the hundred to make with themselves thetwelve jurors for the hundred. The coroners again from thefirst moment of their institution in I 194 had been elected bythe county. This local organization had, we have seen, beenmade use of for fiscal purposes ; assessments to taxes onmovables and even on land had been made by local juries.At an exceptional crisis in 1213 four lawful men with thereeve from the vills of the royal demesne had been calledon to meet the bishops and barons, and in the same year fourdiscreet men from each shire had been summoned ad Zoquen-Sebct Charters, p. 105, VII, 7.ib. p. 358.

72 Constitutional History PERIODdurn nohisczun de negotiis regni nostril. Throughout Henry'sreign the use of local and representative machinery for theassessing and collecting of taxes granted by the assembly ofbarons and prelates becomes more constant and more important.Distinct progress is made in 1225, in 1232, in 1237.The documents you will find in the Select Charters2. In 1254a great step was made. The king had gone to Gascony andwas in sore need of money ; the regents, his wife and brother,summoned a great council to Westminster: to which eachsheriff was to send four knights from his county, ' four lawfuland discreet knights from your county whom the county shallhave chosen for this purpose in the place of all and singularof the said counties to provide along with the knights from theother counties whom we have caused to be summoned forthe same day what aid they will give to us in this our greatnecessity.' Representatives of the counties, representativeselected by the counties, then are summoned not merely toassess, but to grant an aid; there is to be no dealing witheach county separately; all are to meet together and toprovide together.The great struggle which began in 1258 and ended withthe battle of Evesham, 4 August I 265, did not carry the historyof parliament much further. The Parliaments between thatof 1254 and that of 1265-the word parliamentztm was justcoming into use, supplanting colloquium and other terms, andthe assembly which forced the charter from John had recentlybeen styled retrospectively parliamenturn Rz~fzimedae-did notcontain, SO far as we know, any representatives of shires orboroughs. The national strivings have another end in view :a small council elected by the barons to control the king,ministers elected by and answerable to the baronage, thereform of a miscellaneous catalogue of abuses. Beginningwith the parliament held at Oxford in 1258, the Mad Parliament,we have complicated paper constitutions of an oligarchic1 SrZrct Chavtcrs, pp. 276, 287, and Constitutional History, vol. I, 5 154.Mr Davis [Engl. Hist. Rev. April 1905, pp. 289-901 argues that in the earlierrase the jurors were summoned not to S. Albans but to their respective shirecourts.Sclcct Chavtcvs, pp. 355-6, 360-2, 366-8.I Simon de Montfort 73character, some of which work for a while, from which theking frees himself when he can. An important set of reformsredressing the grievances of the smaller tenants in chief wasobtained in 1259, the Provisions of Oxford ; but in the end itcame to fighting. When the parties were already arming in1261, the chiefs of the provisional government summoned toan assembly at S. Albans three knights from each shire;Henry ordered the knights to be sent not to S. Albans, butto Windsor. The battle of Lewes was won on 14 May, 1264.Almost immediately Simon of Montfort, who had the king inhis hands, ordered the election of four knights to meet the kingin ~arliament on 22 June. At the end of the year he summonedthe famous parliament of 1265. AS to bishops, abbotsand barons only such were summoned as were friends of theparty in power-only five earls, only eighteen barons. Buteach sheriff had a writ to return two discreet knights for eachshire, and a similar summons was sent to the cities andboroughs. What was newest in this parliament was thepresence of representatives of the cities and boroughs. Soonfollowed the battle of Evesham. There is nothing to provethat during the six last years of the reign the parliamentsincluded representatives of shires or boroughs ; but we cannotbe quite certain of this ; and proctors of the cathedralchapters were present at the Parliament of Winchester heldimmediately after the king's victory. One of these parliaments,that of 1267, passed the great Statute of Marlboroughor Marlbridge, which conceded many of the reforms forwhich the nation had clamoured. It professes to have beenenacted convocatis discretioribus regni tam majoribus quamminoribus.The same doubt hangs over many of the early parliamentsof Edward's reign, many of the parliaments which passed thefamous statutes. In 1273 a great assembly was held to takethe oath of fealty to the new king; there came the archbishopsand bishops, earls and barons, abbots and priors, andfrom each shire four knights, and from each city four citizens.The Statute of Westminster the First (1275) declares theassent of archbishops, bishops, abbots, priors, earls, barons,and the community of the land. The Statute of Gloucester

74 Colzstitutional History PERIOD(1278), the next great Act, was, as it says, made with theassent of the most discreet men both of high and low degree.In 1282 a curious expedient was tried ; the king was fightingin Wales ; he caused two provincial councils to be summoned,that for the northern province, at York, that for the southern,at Northampton ; clergy and laity were summoned to each,four knights for each shire, two representatives for each town.This case was exceptional, and became no precedent. Anothersomewhat anomalous assemblage was held at Shrewsbury in .1283, with representatives of twenty-one selected towns andtwo knights of each shire. It is not certain that any representativeswere present at the parliament of 1285, whichenacted that great code which we know as the Statute ofWestminster the Second; the very important Statute ofWinchester in the same year (1285) is on the face of itmerely the king's commandment, and we do not know thatany representatives of the commons were present at its making.Again, in 1290, the Statute of Westminster 111, the celebratedQuia Emptores, was enacted by the king at the instance ofthe magnates. Knights from the shires did attend thatparliament, but the statute was passed a week before the dayfor which they were summoned. Two knights from each shirewere summoned in I 294.The next year gives us the model for all future parliaments.The archbishops and bishops are directed to bringthe heads of their chapters, their archdeacons, one proctor forthe clergy of each cathedral and two for the clergy of eachdiocese. Every sheriff is to cause two knights of each shire,two citizens of each city and two burgesses of each boroughto be elected. Seven earls and forty-one barons are summonedby name. The clergy and baronage are summoned to treat,ordain and execute, the representatives of the commons areto bring full powers from those whom they represent toexecute (ad facie~zdzrm) what should be ordained by commoncounsel. A body constituted in this manner is a parliament;what the king enacts with the consent of such a body is astatute. Very soon indeed these two terms become specificallyappropriated ; for a very short while they may be used in alaxer way :-parliament of course merely means a conference,The Three Estatesa meeting at which there is to be talk, debate, deliberation.Now and again the name is given to meetings of the king'sordinary council, or to meetings which would afterwards havebeen called magna concilia as distinct from parliamenta-mcetingsof the prelates and barons to which representatives ofthe commons were not called-or again to some anomalousassemblages which were occasionally summoned. But veryquickly indeed usage becomes fixed: a parliamentzmz is abody framed on the model of 1295, it is frequently, habitually,summoned, and with its consent the king can make stattltal.Thus before the end of the thirteenth century the nationalassembly is ceasing to be a feudal court; it is becoming anassembly of the estates of the realm, that is to say, accordingto the theory of the time, of all sorts and conditions of men.Against the once common mistake of calling the king one ofthe estates of the realm, I need hardly guard you ; it has beensufficiently denounced. The three estates are clergy, barons,and commons, those who pray, those who fight, those whowork; this seems to have been considered an exhaustiveclassification of the divers conditions of men. A similaridea seems to have been very prevalent throughout WesternChristendom and to have given rise to assemblies of estates ;but the institutions to which it gave rise varied with thehistories and circumstances of the different nations. Forinstance it is particularly noticeable about the English parliamentthat the burghers do not form a separate estate. Therewas perhaps some tendency towards an arrangement whichwould have drawn a broad line of demarcation between themand the knights of the shire, some danger (for such we mayconsider it) that the king would be able to get money bynegotiating with the merchants grants of customs, indirecttaxes which would have fallen on the consumer. There weresuch negotiations in Edward the First's day ; but the dangerwas counteracted ; the whole mass of representative memberssat together and voted together and represented but oneestate, the commons of the realm.The growth of parliament under Edward I is traced by Stubbs, Consl. Hist.~01. 11, C. 15.

76 Constitutions l History PERIODOf course one such assembly as that of 1295 might wellhave been a solitary event which the historian would note onpassing as an anomaly. Taking our stand at the death ofEdward in 1307 we are not entitled to say that the sovereignpowers which formerly were exercised by the king, or by theking and his barons, have definitely been transferred to anassembly of estates1. It is only in the light of what was atthat time future history, that the parliaments of Edward's lastyears have their vast importance. However, we know as amatter of fact that they did form precedents ; that parliamentsformed on the model of 1295 were constantly held during thecoming centuries; that at last it was distinctly recognizedthat the sovereign power of the realm was vested in a kingand a parliament constituted after this model. It is with suchknowledge in our minds that we will examine the nature ofthis assembly.The first of the three estates is that of the clergy. In thefirst place the bishops and a number of abbots are summonedby name. Their position is, we may say, somewhat ambiguous.The bishops were the heads of the clergy, the rulers of thechurch ; but they were also tenants in chief of the crown, andheld baronies. They had therefore a double claim to bepresent. There can be little doubt that their claim to bethere as prelates of the church, apart from all question ofbaronial tenure, would have been fully admitted. In the firstplace there is a difference between the wording of the writsaddressed to the temporal lords and that of the writs addressedto the bishops. Usually the lay baron is charged to comeupon 'the faith and homage,' or the ' homage and allegiancewhereby you are bound to us'; in the bishops' writs homageis not mentioned, though the bishops had to do homage fortheir temporal possessions; it is to their faith and love towhich the king appeals. In the second place when a see isThis proposition is amplified in Maitland's Memoranda dt Parliamento (RollsSeries), 1893, a record of the parliament of 1305. 'A session of the King'sCouncil is the core and essence of every parliamenturn, the documents usuallycalled parliamentary petitions are petitions to the king and his council, theauditors of the petitions are committees of the council, the rolls of parliament arethe records of business done by the council, sometimes with, but much more oftenwithout, the concurrence of the estates of the realm.' Intr. p. lxxxviii.The Clerical Estatevacant the guardian of the spiritualities of the see wassummoned instead of the bishop ; that guardian was in somecases the archbishop, in others the cathedral chapter; thebarony of the vacant bishopric was not in his hands. However,the double right of the bishops provided abundantmaterial for controversy in later times.As to the abbots-whatever their original title may havebeen, it soon came to be regarded as title by baronial tenure.This was brought about by the abbots themselves ; they hadfew interests in national politics, and attendance was burdensome.They therefore insisted that they need not attendunless they held by military tenure. The number of themsummoned very rapidly decreases: under Edward I it is ashigh as 72 ; under Edward I I I it has fallen to 27, where itremains until the monasteries are dissolved.But the representation of the clerical estate was not to becompleted by the presence of the prelates. The inferior clergywere to be represented. Gradually the principle of representationby elected proctors (p~~ocuratores) had been making itsway into the purely ecclesiastical assemblies. Owing to therivalry between Canterbury and York, there never came to beany one ecclesiastical assembly for the whole realm ; just foran occasional moment, under the authority of a papal legate,a body representing the clergy of all England might meetbut no such body became a permanent element in the governmentof the church. Gradually two convocations were formed,the one for Canterbury, the other for York. The growth ofrepresentation among the clergy was parallel with the growthof representation among the laity. The inferior clergy weredirected to send proctors to represent them in the councils ofthe church. Towards the end of the thirteenth century theplan adopted in the province of Canterbury was that theparochial clergy of each diocese should be represented bytwo proctors, the clergy of each cathedral by one ; theseelected proctors, together with the archbishop, bishop, abbots,priors, deans and archdeacons, constituted the convocation.In the northern province a slightly different rule prevailed.Now one must carefully distinguish these provincial convocationsfrom the representation of the clergy in parliament.

78 Constitutiona~ History PERIODThe convocations are two ecclesiastical assemblies summonedby the archbishops. Edward attempted to bring the clergyto parliament. The bishops are to bring with them to thenational assembly the heads of their chapters, their archdeacons,one proctor for the clergy of each cathedral, andtwo proctors for the clergy of each diocese. The clausedirecting the bishops to do this is known, from its firstwords, as the praemunientes clause. It has been in useever since, is in use even at the present day, though sincethe end of the fourteenth century it has been steadily disobeyed.The clergy did not like this plan of being mixed upwith the laity. They were the holders of great wealth; theyhad to bear a large share of taxation-but they preferred todeal with the crown separately, to vote their taxes in theirown provincial and purely ecclesiastical convocations. Thusthey missed the chance of becoming a large element in whatwas going to be the sovereign body of the realm. Parliament,instead of being an assembly of the three estates, became anassembly of lords, spiritual and temporal, and commons. Butthisrefusal of the clergy belongs to a later time than that ofEdward I; Edward made the attempt to get them to meetthe laity, so that he might deal with all estates of men concentratedin one assembly.The history of the baronage, the second estate of the realm,is a matter of difficulty: controversy has raged around it, ithas become the theme of a large literature. The difficulty hasat least in part been created by the continued existence downto our own time of this estate, and the high value that menhave come to set on a seat in the House of Lords. Fromtime to time peerages are claimed by titles which rake upthe whole mass of obscure constitutional antiquities, and acommittee of privileges of the House of Lords is called onto import into very remote times some definite theory of thebaronage, some theory much more definite than had beenconceived by the men of those times. No statute of limitationsbars the claim to a peerage, and occasionally claimsbased on very ancient facts have to be discussed and decided.A word about the way in which such claims are settled.It seems admitted that the House of Lords has a right toThe Baronagedecide on the validity of a new creation, a right which, forexample, it exercised in 1856 when it decided that the patentof life peerage granted to Baron Parke, Lord Wensleydale,did not entitle him to sit in the House of Lords. On the otherhand it seems certain that the House has no jurisdiction onclaims to an old peerage. The power of deciding such claimsthe crown has kept to itself. As a matter of fact, in a case ofdoubt it refers the matter to the House of Lords, which refersit to a committee of privilege-the committee reports to theHouse, the House communicates the resolution to the crown,the crown acts upon it-the claimant is or is not suxnmoned.But this is constitutional usage, not law, as has been veryexplicitly admitted by the lords in quite recent times1. Nowthat this should be so even in our own day is, I think, veryinstructive. There is no law court into which the claimant ofa peerage can go to establish his claim. Now-a-days thismeans next to nothing ; if you think that by hereditary rightyou are entitled to be summoned as a peer of the land to theHouse of Lords, doubtless you will get your right. But itpoints to what has been very important, the power of the kingto determine the estate of the baronage.Lawyers and antiquaries have been forced to seek fora strict theory of the baronage, and have never been verysuccessful in finding one. Doubtless, however, tenure is thequarter to which we must look : the idea of nobility of bloodis not the foundation. That idea does occur all Europe overamong the peoples of our own race if we go back far enough.The distinction between eorl and ceorl is a distinction betweenmen who by birth are noble, and those who- by birth are,perfectly free but still not noble; and in the old dooms thisdistinction finds sufficient expression, it can be measured innumbers, the wergild of the noble is so many times that of the' This was very explicitly admitted by Lord Campbell in the Wensleydalecase (Anson, The Law and Custom of the Constztution. Part I: Parliament.3rd ed. p. 208), and again by Lord Chelmsford in the Wiltes case (1869, L. K. 4,H. L. 126). Lord Chelmsford went so far as to hold that a committee of privileges,hearing such a claim, is quite unlike a jodic~al tribunal in this respect, thatit is not bound by the resolutions of a previous committee ; it may give diametricallyopposite advice in one case to that which has been given in another; itPronounces no judgment, it merely gives advice. F. W. M.

80 Colzstitutional History PERIODnon-noble, the oath of the eorl will outweigh the oaths of somany ceorls. But for a long time before the Conquest thenobility of birth had been supplanted by a nobility of tenureand of office. The thane is noble because of his relation tothe king, a relation intimately connected with the holding ofland, and a nobility of tenants in chief, crown vassals, would bethe natural outcome. But as already pointed out, the NormanConquest put difficulties in the way of the formation of sucha nobility. The aggregate body of tenants in chief was a verymiscellaneous mass, including very great men, and men whomight relatively be called very small, the tenant who dischargedall feudal obligation by coming in person to the field,and he who was bound to bring twenty or fifty knights. Thegrades were many and small; there was no one place at whicha hard line could be drawn ; and probably it suited the kingvery well that none should be drawn, that he should not behemmed in by a close aristocracy ; against the great feudatorieshe relies on the smaller tenants in chief. The practiceof the royal exchequer and of the royal army does in time drawa line ; on the one hand stand the barones majores, who dealdirectly with the exchequer, are summoned personally to thearmy or the council; on the other hand stand barones minoyes,barones secundae dipzitatis, who deal with the sheriff, and aresummoned through the sheriff; the lands which the formerhold are recognized as forming baronies ; for the purpose offeudal dues they are treated as wholes, they pay a lump sumfor the relief; those who have not baronies pay on eachknight's fee. Finally the word baro becomes appropriated totenants of the former class; the latter are tenentes zn cafite;but the word baro is long used somewhat vaguely; the baronesof one clause of the great charter seem to be the baronesvzajores of another.It has been contended by some that tenure by baronywas a particular kind of tenure differing from tenure by knightservice. The dificulty, however, has been to find in whatrespect these tenures differed. To say that the one impliedthe right to the special summons while the other did notexplains nothing, and brings us back to the point whence westarted, that tenure by barony is the tenure of those who areI What is a Barogy ? 81specially summoned. When the law of tenures attains itsfully developed form and a systematic expression, we do notfind tenure by barony as one of the Kinds of tenure ; Littleton(circ. 1480) does not make it a kind of tenure; a man may holda barony, certain parcels of land have long ago been recognizedas forming a barony, but he does not hold by barony, heholds by knight service or by grand serjeanty. In all privatelaw the distinction has no place, it is utterly unlike the distinctionbetween tenure by knight service and tenure bysocage. This is a question which has been contested bySelden, Madox and other very learned persons. I will statethe cautious conclusion of Dr Stubbs : ' Whether the baronialhonour or qualification was created by the terms of the originalgrant of the fief, or by subsequent recognition, it is perhapsimpossible to determine. As we do not possess anything likean early enfeoffment of a barony, it is safer to confine ourselvesto the assertion that in whatever form the lands were acquiredor bestowed, the special summons recognized the baronialcharacter of the tenure, or in other words, that estate wasa barony which entitled its owner to such special summons1.'Thus we seem to be involved in a circle-Who is entitledto the special summons? He who holds a barony. Butwhat estate is a barony ? One which entitles its owner to aspecial summons.The next point is this:-In the course of the thirteenthcentury knights representing the shires are summoned toparliament. As this practice is introduced, so the practicedirected by John's charter of summoning the minor tenants inchief by means of general writs addressed to the sheriffs-a,practice which may have been more or less carefully observedduring the reign of Henry 111-was abandoned. The minortenants in chief would be represented in parliament by theelected knights of the shire. Probably they were well contentwith this ; to attend at their own cost assemblies in which theyhad little or no weight was a burden. They fell definitely intothe mass of the commons : there was no longer any politicaldistinction between the tenants in chief who do not get theCo~zstitutional History, vol. XI, § 189.

Constitutions Z Historyspecial summons (and who have now altogether lost the nameof barons) and the tenants of mesne lords.The baronage then is the body of men who are summonedspecially to parliament-they are summoned because theyhold baronies, estates which have been recognized as baroniesby the special summons, and by the baronial relief Severalquestions arise at this point, which are difficult of solution.First, was the Icing restricted to the summoning of those whoreally held what had already been regarded as baronies? Theanswer seems to be that such must long have been the theory,but a vague theory by which the king was not very strictlybound. In the fourteenth century, as already remarked, alarge number of abbots were relieved from the duty of attendanceon the ground that they did not hold baronies. It is notknown, however, that any temporal lord was ever relieved fora similar reason. On the other hand it is not known that thepeers ever objected to the introduction into their midst of onewho had no territorial barony-nor for a long time do we hearof anyone protesting that he has a right to be summonedmerely because he holds a territorial barony. Probably thetheory prevailed and was more or less regularly observed (howregularly is a difficult question, involving a terrible investigationof pedigrees) until in the reign of Henry VI the practicecrept in of creating barons by letters patent. Not very longafter this it becomes the definitely established doctrine thata writ of summons hllowed by an actual sitting in the Housemakes a peer, barony or no barony. This, however, left openthe question whether the possession of a barony did not givethe right to be summoned, and that question was hardlysettled until our own day. During the Middle Ages landscould not be devised by will, the king's tenants in capite couldnot alienate without royal license, and no great absurdity couldhave resulted from the doctrine that the right to a summonscould be conveyed along with the land. Certainly it seems tohave been thought in the fifteenth century that the dignitymight be made the subject of a family settlement, that thedignity along with the land might be entailed. But in 1669the contrary was definitely laid down by the king in councilon a claim to the barony of Fitzwalter. Barony by tenureBarony by W~itwas declared to have been discontinued for many ages, andnot in being, and so not fit to be 'received or to admit anyright of succession thereto.' The question was reopened in1861 by the Berkeley Peerage case, and what was by this timegenerally understood to be law was adopted and applied. Noone now can claim a seat in the House of Lords on the groundthat he holds a land barony. With our modern freedom ofalienation some very quaint results might have been producedby a contrary decision. He must claim under writ ofsummons or letters patent.As regards barony by writ of summons there are still somequestions which remain very open. It may be doubtedwhether Edward I in summoning a baron intended to bindhimself and his successors to summon that man and his heirsto the end of time. But at least very soon it became the rule tosummon those and the heirs of those who had already beensummoned. Whether a writ of summons conveyed a hereditaryright was a question very warmly discussed in theseventeenth century between Coke and Prynne. Prynne produceda long list of cases in which apparently a person whowas summoned once, or more than once, was not again summoned,and in which the heirs of a person who was summonedwere not summoned. Dr Stubbs says that on careful examinationPrynne's list shrinks into very small proportions; mostof them can be accounted for by the circumstances of theparticular cases, such as minorities1. At any rate it becamethe orthodox doctrine that the crown may not withhold thewrit from the heirs of a person who has been once summoned,and who has taken his seat. This was definitely decidedin 1673 in the case of the Clifton barony2. It seems to havebeen considered law already in Coke's day3. In 1677 theFreshville case decided the point that it is not enough to showthat one's ancestor has been summoned, one must show alsothat he took his seat. Until he takes his seat he is no peer.In this respect barony by writ differs from barony by patent.Co?zsfzfutzonal Hzstory, 111, 5 7 j I note.Anson, Parlzamefzt, p. 196.Abergavenny's Case, 12 Rep. f. 70.

84 Constitutional HistoryPERIODThe patent itself makes a man a peer1. On the face of awrit, you will understand, there is nothing about any peerage,any future summonses, any summoning of heirs-heirs are notmentioned-simply A. B. is summoned to come to the nextparliament. A distinct theory of hereditary right has graduallybeen developed, superseding an indistinct theory of right bytenure.But besides the prelates and the barons there are otherpersons who are summoned by name, members of the king'scouncil, in particular the judges, and these distinctly do not holdbaronies and are not barons. In the parliaments of Edward'sreign the royal council meets the estates of the realm. Edwardprobably had no idea of restraining himself from seeking theadvice of any whose advice might be worth having. It is olllyvery gradually and as a notion of a hereditary right of peeragegrows, that these councillors are recognized as having no realplace in the deliberations of parliament. They continue to besummoned, even at the present day the judges and the lawofficers of the crown are summoned by name to attend theparliament :-but before the end of the Middle Ages it becameestablished doctrine that they had no votes, that they werenot even to speak unless asked for their opinion. Thenceforwardtheir attendance became little more than a form-but,as just said, a trace of it is retained at the present day :-thejudges are summoned to parliament, there are places for themin the House of Lords, and that House has a right to compeltheir attendance and to take their opinion on matters of law,a right which it occasionally exercises even now though onlywhen it is sitting as a court of law.The question seems still open whether to prove the summons and sitting ofone's ancestor at any time, however remote, is sufficient. In one recent case (thede L'Isle Peerage) Lord Redesdale seems of opinion that the summons and sittingmust have taken place on this side the year 1382. This year seems to be chosenbecause of a statute, 5 Ric. z, stat. 2, cap. 4, which says that 'all and singularpersons and commonalties which from henceforth shall have the summons of theparliament, shall come from henceforth to the parliaments in the manner as theyare bound to do, and have been accustomed within the realm of England of oldtimes.' I much doubt whether that statute was directed to making the peerage morehereditary than it was: it seems to have had quite another object. Dr Stubbswould go back as far as 1295, or even further, should earlier writs be discovered.It is a small point, but rather instructive. F. W. M.I The Third Estate 85It remains to speak of the commons of the realm-thethird estate. And first of the word 'commons.' It seems to methat two ideas have been blended. The persons who enjoyno special privilege, who have no peculiar status as barons orclerks, are common men. Rut I do not believe that this wasthe notion present to the minds of those who first used theterm 'the commons' in contrast to 'the barons' and 'the clergy.'I do not think that the word 'a commoner' as opposed to 'apeer' is old. 'The commons,' says Stubbs, 'are the communitiesor zaziversitates, the organized bodies of freemen of theshires and towns, and the estate of the commons is the commztnitascommunitatzrm, the general body into which for thepurposes of parliament these communities are combined1.'I may remind you of the French commune, and that thelanguage of our law just at the time when parliament wastaking shape was French. Any way the representatives whoappeared in parliament were not representatives of inorganiccollections of individuals, they represented shires and boroughs.It is a little too definite to say that they represented corporationsaggregate-the idea of a corporation aggregate had notyet been formed by our law, and the English county has neverbecome a corporation. Still this word is only a little toodistinct. The county was already a highly organized entity.County and county court were one. The language of the timedid distinguish between the two-the county court is thecomitatus-there is no such phrase in our books as curiacomitatzrs, curia de comitatu. On the judicial rolls of thetime complaints are not uncommon of what the county hasdone; the county has delivered a false judgment ; the countyby four representative knights comes into the king's court anddenies that it has given a false judgment; the county evenwages battle by its champion ; if the county does not appearthen the county is amerced. It is well to remember that allthis had been so for a long time before the knights of the shirewere summoned to parliament. In summoning the countyto send representatives Henry, De Montfort and Edwardwere only putting old machinery to a new use. This helps usCo~zstitutio7tal Nistouy, vol. 11, 8 I 85.

Constitutional Historyto face a question which has often been discussed-namely,who elected the knights of the shire who came to the earlyparliaments. One answer has been, the king's tenants in chief-these minor tenants in chief who were not summoned byname. There is something to be said for it. The court ofa feudal king should consist of tenants in chief-should haveno sub-vassals in it. The assembly recognized or designed inJohn's charter was an assembly of this sort. It becameimpossible or useless to call up all the tenants in chief, soinstead the lesser of them, those who had no special summons,were allowed or compelled to send representatives. The constituencythen of the knight of the shire was an assembly, notof all freeholders, but of tenants in chief: only gradually astenure becomes of less importance, and as the working of theQuia Ernptores largely increases the number of tenants inchief, are the tenants of mesne lords admitted. But thisdoctrine has been very generally rejected by modern historians,by Hallam and by Stubbs. From the first the language usedof the knights is that they are to be elected in full countycourt, by the assent of the whole county, itz pleno comitatzb,fey assensugn totius cornitatus, and so forth. Such languagehad already a definite meaning, it had been constantly usedfor other purposes; it referred to the county court; the countycourt was not an assembly constructed on feudal lines; itcomprised the whole body of freehold tenants holding whetherby mesne or by immediate tenure of the king. Those whohave maintained the opposite opinion have been forced toimagine another county court, one attended only by thetenants in capite; to the existence of any such assembly norecofd bears witness ; such an assembly could not have beenindicated by the well-known phrases plenus comitatz~s, totzlscomitntus. If it be urged that a representation of sub-vassalsis opposed to the feudal spirit, the answer is that Edward'slegislation is pervaded by a spirit which is anti-feudal, itstrives to lessen the public, the political importance of tenure,to bring all classes into direct connection with king andparliament. This is, I believe, the general opinion at thepresent day-but it has some difficulties to overcome, for itseems clear from a series of petitions in the fourteenth centuryThe Coztnty fi-ragchisethat the question as to who were to pay the wages of theknights of the shire was a somewhat open one. The tenantsof mesne lords contended that they were not bound to contribute,but they do not, I believe, urge as a reason for thiscontention that they are not represented. It seems verypossible that practice differed somewhat widely from legaltheory, that the smaller tenants, socagers and so forth, did notoften attend the county court, that the office of representativewas by no means coveted, and that the election was de factomade by the great men. But it seems almost impossible tobelieve in the face of existing documents that the electoral bodywas not from the first the whole body of freeholders, the totuscomitatz~s. The Act of 1430 (8 Hen. VI, c. 7), which regulatedthe county franchise for four centuries, was (as appears by thepreamble) passed to prevent riotous and disorderly electionsitordains that the electors are to be people dwelling in thecounty, whereof every one of them shall have free land or tenementto the value of 40 shillings by the year at the least aboveall charges. The elector must be a freeholder, a forty shillingfreeholder-he must have free land or tenement, but no distinctionis noticed between tenure of the king and tenure ofa mesne lord, nor between military tenure and tenure bysocage. Certainly this act and some others of the two previousreigns do not favour the belief that such distinctions had everbeen of importance.I have stated these two opinions, viz., that the persons whoattended the county court for the election of representativeknights were (a) the tenants in chief of the crown, (b) all thefreeholders-and I have said that the latter is the opinion whichnow prevails. For my own part, however, I doubt whethereither of them gives us the real truth-reasons for this doubtyou can see, if you wish it, in the English Historical Review forJuly 1888. Perhaps I ought just to state what I believe tobe the truth. It seems to me that the duty of attending thecounty court, the duty of going there to sit as a judge, wasconceived as being in general incumbent upon all freeholders,but that it had become a burden annexed to particular parcelsof land, so that when the number of freeholders was increasedby subinfeudation the number of suits due to the county court

Colzstituitionad Historywas not thereby increased. This manor, or this township, orthis tract of land which belongs to A, owes a suit to the countycourt. A enfeoffs B, C, D with parts of the land. The wholemanor, township, or tract still owes one suit, must send onesuitor, but it owes no more. Who shall do that suit is amatter that A, B, C, D can settle among themselves, and theydo settle it among themselves by the terms of the feoffment.As regards the king or the sheriff they are all jointly andseverally liable for the coming of one suitor, as between themselvesthey can determine who shall discharge the burden.So again in a case of inheritance-A holds land which owesa suit: he dies and it descends to his three daughters B, C, D :one or other of them must do the suit, and in general theburden falls on the eldest daughter.It was in this manner that the county court, which metmonth by month as a court of law, was constituted. Thosewho were bound to come there were not necessarily tenants inchief, nor again were all the freeholders bound to come-thepersons who were bound to come were those persons who bymeans of bargains between lords and tenants were answerablefor that fixed amount of suit to which the court was entitled.The evidence of this consists in a large number of entries indocuments of the thirteenth century, e.g. the Hundred Rolls,in which it is said that A or B does the suit to the countycourt for a whole manor or township. Of course it is conceivablethat when the county court sat for the purpose ofelecting knights of the shire, other persons attended and wereentitled to attend, besides the regular suitors who came monthby month-perhaps all freeholders might come:-but I do notsee the proof of it-such phrases as ple~zus comitatzrs, totusco?nitatzrs are constantly used of the county court as constitutedfor judicial purposes, the court which sat month bymonth, and my contention is that by no means every freeholderowed suit to that court.A similar question has been raised about the boroughs.Were the boroughs which were directed to return representativesonly the demesne boroughs of the crown or all theboroughs in the shire? Both Hallam and Stubbs have writtenin favour of the latter view. The election of burgesses toBorough Representationrepresent the towns was not a matter altogether distinct fromthe election of knights of the shire. A writ was sent to thesheriff of each county commanding him to procure the electionof two knights from his county, two citizens from every city,two burgesses from every borough. The election was probablymade in the boroughs and then reported to the county court ;but all was under the direction of the sheriff of the countyuntil the fifteenth century, when a few towns succeeded ingetting made counties of themselves and having sheriffs oftheir own. Indeed, so late as 1872, no writ was addressed toany officer of the borough ; the sheriff of the county, as of old,was told to send two knights for the shire, two citizens forevery city, two burgesses for every borough. See the writprinted by Sir William Anson, where the sheriff of Middlesexis to return not only two knights of the shire, but also twocitizens for the city of Westminster and two burgesses ofeach of the boroughs of the Tower Hamlets, Finsbury, andMarylebonel. But during the Middle Ages the cities andboroughs were not thus named. A considerable power seemsthus to have been left in the sheriff's hand. What wereboroughs and what were not was to a certain extent ascertainedby the ordinary course of justice. Some boroughs,but by no means all, had charters ; but when the justices ineyre came to the county court, every borough was representedby its twelve burgesses, while the common country village, viZ-Zata, township was represented by the reeve and four best men.In telling the sheriff, therefore, to return burgesses from everyborough, terms were used which had an ascertained meaning.We do find the idea of tenure cropping up at times, as thoughonly the king's demesne boroughs had a right to be represented,or rather were bound to be represented. But it isdifficult to make the facts correspond with any theory, andcertain that the boroughs on one pretext and another evadedthe duty of sending representatives and paying their wageswhenever they could. There is one case in which a borough(Torrington) actually obtained a charter absolving it fromthe obligation.Anson, Parlianzent, pp. 57-8.

Constitutional Hist oryRy whom were the representative burgesses elected ? Asregards Edward's day, and indeed much later times, ourmaterials for answering this question are very scanty. Theone thing that we can say with some certainty is that thequalification varied from borough to borough. When at lastwe get accurate information, we find that it varies very greatly.In this borough the franchise is extremely democratic, everyperson who has a hearth of his own may vote; in another,every one who contributes to the local rates, who pays scotand bears lot; in another, every one who has a free tenement.Elsewhere the franchise is confined to the members of a smallcivic oligarchy. We can say with some certainty also thatthe more democratic the qualification, the older it is. InEdward's day contribution to the local burdens may haveoften qualified a man to vote ; in other cases tenure was important,he had to be a tenant of the manor constituted bythe borough ; in some cases, membership of the merchantguild may have been requisite ; but the small close corporationsbelong to a later age. The important thing to noticeis that this matter was decided by no general law; eachborough was suffered to work out its own history in itsown way, and to buy what privileges it could from thecrown.That notions of tenure had a considerable, though a restricted,influence on the constitution of parliament is shownby the history of the counties palatine. The county of Chesterreturned no knights until 1543 ; the county of Durham returnednone until 1672.At the time of which we are speaking (1307), the parliamentof the three estates was by no means the only organ ofgovernment; indeed, as we have seen, it was only just cominginto being. Most of the great statutes of the reign weremade in assemblies of the older type, assemblies in whichthe commons and the inferior clergy were not represented.Such assemblies of prelates and barons were held in latertimes, and got the name of Magna Concilia which distinguishedthem from true Parliamentu ; only by slow degrees was theline established between what could be done by a MagnumConcilium and what could be done by a Parliamentum.I The Ordigary Council 91But besides these grand councils, the king had a permanentcouncil in constant session. This permanent or ordinary councilhad grown out of the curia Regis of earlier times; the wordcz~ria comes to be more and more definitely appropriated to ajudicial body, and the judicial body becomes distinct from theadministrative deliberative body to which the king looks foradvice and aid in the daily task of government. A conciliz~mas distinct from the curia first becomes prominent during theminority of Henry 111-it acts as a council of regency. It isgenerally called simply Concilit~m Regis, as opposed to thecommune conciliwn yeg~zi; its members are magnates de concilio,conciliatores. It seems to comprise the great officers ofstate, justiciar, chancellor, treasurer, some or all of the judgesof the royal curia, and a number of bishops, barons and othermembers who in default of other title are simply councillors.The chroniclers now and again inform us that one person wasmade a member of the council and another dismissed ; but(and this is noticeable) there is from the first something informalabout its constitution ;-it needs no formal documentto make a man a member of the council; the king can takeadvice in what quarter he pleases, and the so-called councillorhas no right to be consulted. Just while parliament is growingthis council also is growing. The task of government becomesalways more elaborate ; it requires constant attention ; it cannot~ossibly be accomplished by the king without the help orinterference of a national assembly summoned from time totime. During Henry's reign the scheme of reform constantlyput forward by the barons is that they should elect the council ;Henry's councillors have too often been his hated foreignfavourites. This scheme breaks down. Under Edward thecouncil is a definite body; its members take an oath; theyare sworn of the council-swearing to give good advice, toprotect the king's interests, to do justice honestly, to take nogifts. Under Edward the relations of this king's council tothe great council of the realm are still indefinite; all worksSO smoothly that there is no struggle, and consequently nodefinition. Both in his parliament and in his council the kinglegislates, taxes and judges-indeed it is often hard for us tosay whether a given piece of work is, has or has not been

Consf ifu f iona Z Historysanctioned by the common council of the realm. Let UStake these points separately-(I) legislation, (2) taxation,(3) judicature.(I) That the king could not by himself or by the adviceof a few chosen advisers make general laws for the wholerealm seems an admitted principle. The most despotic ofEdward's predecessors had not claimed such a power-it iswith the counsel of prelates and barons that they legislate.On the other hand, that the commons or inferior clergy mustshare in legislation was not admitted, was not as yet evenasserted. As already said, the great laws of the reign-lawswhich made the profoundest changes in all parts of the commonlaw, laws which all subsequent generations have called statutes,statutes which are in force at the present moment-were madein assemblies in which the commons were not represented.But again it seems to have been allowed that there wereregulations which might be made without the sanction ofa national assembly of any kind. The king in his councilcould make, if not statutes, at least ordinances. Some evenof what we now call the statutes of Edward I do not on theirface claim any higher authority than that of the king and hiscouncil. Here is a fruitful source of difficulty for future times.Can any line be drawn between the province of the statuteand the province of the ordinance ? Under Edward all worksso smoothly that the question is not raised. We can say nomore than this-and it is vague enough-that important andpermanent regulations which are conceived as altering thelaw of the land can only be made by statute, with the consentof prelates and barons. Minor regulations, temporary regulations,regulations which do not affect the nation at large canbe made by ordinance.(2) We turn to taxation, and may begin with a fewgeneral reflections as to past history. In the first place, theking had not been nearly so dependent on taxation as a moderngovernment is. Indeed it is not until the very end of theAnglo-Saxon time that we hear of anything that can be calleda tax, not until it is necessary to pay tribute to the Danes.Let us briefly reckon up the sources of income which thekings enjoyed after the Conquest. In the first place thereTaxationwere the demesne lands of the crown. The remnant of theold folk land had become terrn Regis, and this constitutedthe ancient demesne1. Then escheats and forfeitures wereconstantly bringing to the king's hand new demesne lands.Apart from his being the ultimate lord of all land, the kingwas the immediate lord of many manors-he was by far thelargest landowner of the kingdom. Secondly, there were hisfeudal rights-rights which had steadily grown in some directions,if they had been diminished in others. The charter of1215, by clauses which were never again repeated, forbad himto impose any scutage, or any aid save the three regularfeudal aids, without the common counsel of the realm. Thecharter defined the amount to be paid for reliefs, but besidesscutages, aids and reliefs, he was entitled to wardships andmarriages-his rights in this direction had steadily grown,and these were profitable commodities. Thirdly, the profits ofjustice in the king's courts must have been very considerable.Under John the sale of justice had become scandalous. Bythe charter, he promised to sell justice to none-but withoutexactly selling justice, there was much profit to be made byjudicial agencies : fees could be demanded from litigants, andin the course of proceedings, civil as well as criminal, numerousfines and amercements were inflicted. Fourthly, the king hadmany important rights to sell, in particular the right of jurisdiction,and though the more far-sighted of the kings dreadedand checked the growth of proprietary jurisdiction, there wasalways a temptation to barter the future for the present. Theright to have a market was freely sold, and many similarrights. Pardons again were sold. The towns had to buytheir privileges bit by bit. What is more, the grantee of anyprivilege had in practice to get the grant renewed by everysuccessive king. That the king was bound by his ancestors'grants might be the law, but it was law that no prudent personwould rely on. Offices too, even the highest offices of therealm, were at times freely bought and sold-this does notseem to have been thought disgraceful. Fifthly, a good dealcould be made out of the church-when a bishop died theking took the temporalities, the lands, of the see into his own

Constif u fional Historyhand, and was in no hurry to allow the see to be filled ; thishowever was an abuse. Sixthly, the king had a right totallage the tenants on his demesne lands, and on his demesnelands were found many of the most considerable towns. Thisseems the right rather of the landlord than of the king ; otherlords with the king's leave exercised a similar right over . - their ..tenants in villeinage. The tenants on the demesne lands hadfor - -. the .- - - most part held in villeinage; the burghers had verygenerally bought themselves free of villein services in considerationof an annual rent, but the king had retained theright to impose a tallage from time to time-to impose acertain sum on the borough or the manor as a whole-orrather an uncertain sum, for we hear of no limit to the amount.I.astly, somehow or another, the process is obscure, the kinghad become entitled to certain customs duties : Magna Cartarecognizes that there are certain ancient and right customs(aniiqzmae et recine consueiudines) which merchants can becalled upon to pay, and with these it contrasts unjust exactions,or maletolts. To all this we may add that theobligations of tenure supplied the king with an army whichcould be called up in case of war.Here we shall do well to note that at this time and forseveral centuries afterwards, no distinction was drawn betweennational revenue and royal revenue; the king's revenue wasthe king's revenue, no matter the source whence it came; itwas his to spend or to save, as pleased him best; all was hispocket money; it is to later times that we must look for anymachinery for compelling the king to spend his money uponnational objects.But large as had been the king's income, and free as hewas to deal with it in his own way, it had not been foundlarge enough. Direct taxes had been imposed: a land tax,for some time called Danegeld, afterwards carucage, a tax ofso much on the carucate or plough-land ; then as already said,under Henry the Second the taxation of movables begins.We can hardly say that for such taxation the theory of thetwelfth century requires a decree of the national assembly; itbut slowly enters mens' heads that the consent of a majority ofan assembly, however representative, can be construed to bethe consent of all men:-rather the idea is that a tax oughtto be a voluntary gift of the individual taxpayer, and nowand again some prelate or baron is strong enough to protestthat he individually has not consented and will not pay. Theclauses of the charter of 12 I 5, to which reference has so oftenbeen made, mark a very definite step :-no scutage or aid(save the three feudal aids) is to be imposed without thecounsel of the prelates and tenants in chief. But these clausesare withdrawn; it seems to be thought hard that the childHenry should be compelled to make this concession, particularlyat a moment when a foreign enemy is within therealm. However, these clauses are in fact observed; Henry,though he sometimes extorts money in irregular ways, doesnot attempt to tax without the common council of the realm.This council is as yet but an assembly of prelates andmagnates; it grants him taxes on land and on movables,but we can see a doubt growing as to how far it representsall classes of men, how far the consent of the unrepresentedclasses is necessary. Henry is driven to negotiate with theinferior clergy, and with the merchants. In 1254 knights ofthe shire are summoned to treat about a tax. That howeverremains an isolated precedent, and the parliament summonedby De Montfort can hardly be called a precedent at all. It isnot therefore until 1295 that a regular practice of summoningthe representatives of the commons and of the inferior clergybegins1. Each estate now taxes itself; thus in 1295 the baronsand knights of the shire offered an eleventh, the burgesses aseventh, the clergy a tenth. On this followed the great crisisof 1297. The rather elaborate circumstances we must leaveundescribed ; Edward was in great need of money: the popeBoniface VI I I had published the Bull Clericis lnicos forbiddingthe clergy to pay taxes to any secular power; thebarons, again led by the Constable and Marshal, Bohun andBigot, refused to serve in Flanders. contending that they werenot bound to do so by their tenure; Edward seized the wool,the staple commodity of England, and exacted an imposton it; he also obtained the grant of an aid from an irregularassembly. The barons armed against him, and he was forcedFor Edward 1's earlier experiments in summoning parliaments see Stubbs,Consh2utional History, vol. 11. $ 113.

Co?zstitutionaZ Historyto withdraw from hrs position, to confirm the charters withcertain additional articles. The exact form of those articlesis of some importance. According to what in all probabilityis the authentic version of this Confirnzatio Cartarum, hegranted that the recent exactions, aids and prises should notbe made precedents, that no such aids, tasks or prises shouldbe taken for the future without the common consent of therealm, that no tax like that recently set on wool should betaken in future without the common consent of the realm,saving the ancient aids, prises and customs. We have alsowhat seems to be either an imperfect abstract of this document,or else a document which records the demands of thebarons. This in after times came to be known as a statute,Stattrtunz de Tallagio non concedendo, though as just saidin all probability it had no right to this name1. It goes somewhatfurther than the authentic version ; it contains the word'tallage' which the authentic version does not, it does notcontain a saving clause for the king's ancient rights. 'Notallage or aid shall be taken without the will and consent ofall the archbishops, bishops, prelates, earls, knights, burgessesand other free men of the realm! Tallage, as we have seen,was the name given to an impost set by the king on his owndemesne lands-in origin rather a right of the landlord thanof the king. Edward, it seems pretty certain, did not considerthat he had resigned this right ; in I 304 he tallaged hisdemesne lands. But though this particular mode of raisingmoney may thus have been left open by the letter, if not bythe spirit of the law, we may fairly say that after 1295 theimposition of any direct tax without the common consentof the realm was against the very letter of the law. I sayof any direct tax, because subsequent events showed that thequestion of indirect taxes, of customs duties and the like, hadnot been finally settled. And the common consent of therealm was now no vague phrase ; that consent had now itsappropriate organ in a parliament of the three estates.As to the administration of justice by the parliament andthe council, we shall speak hereafter, but first a little shouldbe said of the general position of the king. And first as tohis title ;-1 ~ kChart~~~,t pp. 487-98.Hereditary Kingskzj4The kingship had, I think, by this time become definitelyhereditary.Before the Cotiquest the English kingship was an electivekingship, but the usage hardening into law was for the greatmen, the witan, to elect some near kinsman of the dead king.We ought to recollect in this context that the then existinglaw as to private inheritance was not primogenitary ; ordinarilyat least a dead man's lands and his goods were partible amongall his sons ; all primogenitary rules were but slowly workedout long after the Norman Conquest. We learn from Glanvillthat even at the end of the twelfth century one of the mostelementary questions was still open-A has two sons, B and C,the elder, B, dies during A's lifetime, leaving a son, D ; then Adies; who shall inherit, C or D ? English law has not yetmade up its mind about this very easy problem-for primogenitureis new. So we must not think of private law assetting a model for the succession to the kingship; muchrather is it true that the succession to a kingship or otheroffice became the model for the succession to land; primogeniturespreads from office to property. It is long afterthe Conquest before the notion that the kingship is strictlyhereditary becomes firmly rooted. The Conqueror himselfcould not rely upon hereditary right ; he relied rather on giftor devise. Edward had given him the kingdom. I believethat the notion that of right the crown should have gone toEdgar the Ktheling only makes its appearance late in the day.Neither Rufus nor IIenry I could rely on hereditary righteven according to the notions of the time ; both had to seekelection and to rely upon the support of the people. Stephenagain was compelled to assert a title by election. Probablythe succession of Henry the Third did much towards fixingthe notion of hereditary right. John has been spoken of bymodern writers as an usurper; some at least of his contemporariestreated him as an elected king. Matthew Paris (whodied about fifty years afterwards) has put into the mouthof Hubert Walter, Archbishop of Canterbury, a speech madeby him before crowning John-and we have other reason forbelieving that something of the sort was actually said. Hedistinctly said that no one could claim the crown by hereditary

Constitutions Z Historyright-kinship to the late king would give a preference ; it isnatural and proper to elect a near kinsman, and we haveelected Earl John'. The succession of Henry 111, a boy ofnine, on the death of his father (there was no one else tocrown) is in many ways an important event. From this timeforward the kingship is, I think, regarded by contemporariesas definitely hereditary. Then during a period of nearly twocenturies the late king has always an obvious heir whosucceeds him-Henry 111, the three Edwards and Richard I1follow each other in strictly correct order, though we have toremember that Edward the Second is deposed. Edward Iwas the first king who reigned before he was crowned.Long before the Conquest the English kings had beencrowned and anointed. Whether this ceremony was borrowedstraight from the Old Testament or became ours by a moreroundabout route seems uncertain ; but clearly it was notconsidered to bestow upon the king any indefeasible title tothe obedience of his subjects ; the kings are easily put aside,and no bishop objects that the Lord's Anointed cannot beremoved by earthly power; still a religious sanction is givento the relation between king and people. Also the king swearsan oath. The oath taken by Ethelred the Unready we have,and it is in these terms, ' In the name of the Holy Trinitythree things do I promise to this Christian people my subjects:first that God's church and all the Christian people of myrealm hold true peace ; secondly that I forbid all rapine andinjustice to men of all conditions; thirdly that 1 promiseand enjoin justice and mercy in all judgments, that the justand merciful God of his everlasting mercy may forgive usall2.'Coronation oaths are of considerable interest, since theythrow light on the contemporary conception of the kingship.The oath of Ethelred may be taken as the model of the oathssworn by king after king in the days after the Conquest. TheConqueror, we are told, swore that he would defend God's holychurches and their rulers, that he would 'rule the whole peoplewith righteousness and royal providence, that he would estab-Select Charters, p. 27 I.a Liebermann, Gesefze der Angelsachsen, vol. I, p. z I 7.Coroaation Oathslish and hold fast right law, and utterly forbid rapine andunrighteous judgment.' Rufus swore a like oath. The oathof Henry I seems to have been precisely that of Ethelred. Itis probable that the oaths of Richard, John and Henry I11differed somewhat from this ancient form. They promisedto observe peace, to reverence the church and clergy, toadminister right justice to the people, to abolish evil laws andcustoms, and to maintain the good. It is to be reprettedthat about the oath of Edward I there is some doubt-tobe regretted because the oath of Edward I1 differs in animportant manner from that of Henry 111-but a Frenchform has been preserved which is possibly that used byEdward I, and it has these words-'and that he will causeto be made in all his judgments equal and right justice withdiscretion and mercy, and that he will grant to hold the lawsand customs of the realm which the people shall have madeand chosen (pue Zes gentes de people uveront faitz et eslies),and will maintain and uphold them and will put out all badlaws and customs1.' The oath of Edward I1 is much moredefinite and precise than anything that has yet come beforeus. The king is thus catechized by the Archbishop :Sir, will you grant and keep and by your oath confirm tothe people of England the laws and customs granted to themby the ancient kings of England your righteous and godlypredecessors, and especially the laws, customs and privilegesgranted to the clergy and people by the glorious KingS. Edward your predecessor? I grant and promise.Sir, will you keep towards God and holy church and toclergy and people peace and accord in God entirely after yourpower? I will keep them.Sir, will you cause to be done in all your judgments equaland right justice and discretion in mercy and truth to yourpower ? I will so do.Sir, do you grant to hold and keep the laws and righteouscustoms which the community of your realm shall have chosen(pas vuZgas elegerit-Zes qzdieZs Lu conzmunazdte de vostreroiuuwe auru esleu), and will you defend and strengthen1 Constitutzo;za.? Hzstory, vol. 11, $ rig note.

Theory of Soverezg/ztythem to the honour of God to the utmost of your power?I grant and promise1.You will observe the promise to confirm the laws of SaintEdward. The Confessor has by this time become a mythasaint and hero of a golden age, of a good old time; butthere are documents going about purporting to give his laws,which, if they contain many things inapplicable to these laterdays and even unintelligible about wergilds and so forth,contain also some far from pointless tales, as to how thesheriffs were once elected by the people, and the like. Butthe main interest of the oath centres in the words leges quasvulgus elegerit-les quiels la commz~?zaz~te de ejostre roiazm~eaura esleu. Legislation, it is now considered, is the functionof the cornmunitas reg~zi, u?ziversitas regni, the whole body ofthe realm concentrated in a parliament.And now what was the king's legal position? I thinkthat we may in the first place say with some certainty thatagainst him the law had no coercive process ; there was nolegal procedure whereby the king could either be punished orcompelled to make redress. This has been denied on theground that in much later days a certain judge said that he 'had seen a writ directed to Henry 111-a writ beginningPraecipe Regi Henrico-a writ of course proceeding theoreticallyfrom the king, telling the sheriff to order King Henryto appear in court and answer a plaintiff in an action. Butthis story is now very generally disbelieved. On the contrary,from Henry 111's reign we get both from Bracton and fromthe Plea Rolls the most positive statements that the kingcannot be sued or punished. In this meaning, the maximthat the king can do no wrong is fully admitted. If the kingbreaks the law then the only remedy is a petition addressedto him praying him that he will give redress. On the otherhand, it is by no means admitted that the king is above thelaw. Bracton who, you will remember, was for twenty yearsa judge under Henry 111, repeats this very positively :-Theking is below no man, but he is below God and the law ; lawmakes the king ; the king is bound to obey the law, though ifCo~zstitutional History, vol. 11, 3 249.he break it, his punishment must be left to God1. Now to astudent fresh from Austin's jurisprudence this may seem anabsurd statement. You put the dilemma, either the king issovereign or no; if he be sovereign then he is not legallybelow the law, his obligation to obey the law is at most amoral obligation ; on the other hand if he is below the law,then he is not sovereign, he is below some man or some bodyof men, he is bound for example to obey the commands ofking and parliament, the true sovereign of the realm. Thismay be a legitimate conclusion if in Austin's way we regardall law as command; but it is very necessary for us to rememberthat the men of the thirteenth century had no suchnotion of sovereignty, had not clearly marked off legal asdistinct from moral and religious duties, had not thereforeconceived that in every state there must be some man orsome body of men above all law. And well for us is it thatthis was so, for had they looked about for some such sovereignman or sovereign body as Austin's theory requires, therecan be little doubt that our king would have become anabsolute monarch, a true sovereign ruler in Austin's sensetheassembly of prelates and magnates was much too vague abody, and a body much too dependent for its constitution onthe king's will to be recognized as the depositary of sovereignpower. No, we have to remember that when in the middleof the seventeenth century Hobbes put forward a theory ofsovereignty which was substantially that of Bentham and ofAustin, this was a new thing, and it shocked mankind. Lawhad been conceived as existing independently of the willof any ruler, independently even of the will of God; Godhimself was obedient to law; the most glorious feat of hisOmnipotence was to obey law:-so the king, he is below thelaw, though he is below no man ; no man can punish him ifhe breaks the law, but he must expect God's vengeance.While we are speaking of this matter of sovereignty, itwill be well to remember that our modern theories run counterto the deepest convictions of the Middle Ages-to their wholemanner of regarding the relation between church and state.1 Bracton, De Legibus Atzfliine (Rolls Series), I, 38; History of Enflish Law,vol. I, pp. 160-1, 500-1.

Constitutions Z HistoryThough they may consist of the same units, though everyman may have his place in both organisms, these two bodiesare distinct. The state has its king or emperor, its laws, itslegislative assemblies, its courts, its judges ; the church has itspope, its prelates, its councils, its laws, its courts. That thechurch is in any sense below the state, no one will maintain ;that the state is below the church is a more plausible doctrine ;but the general conviction is that the two are independent,that neither derives its authority from the other. Obviouslywhile men think thus, while they more or less consistently actupon this theory, they have no sovereign in Austin's sense;before the Reformation Austin's doctrine was impossible.But to return. The troubles of Henry's reign, troubleswhich he brought upon himself by his shiftless faithless policy,give rise to other thoughts. Bracton himself in one placehints that possibly if the king does wrong and refuses justicethe universitas regni represented by the barons may do justicein the king's name and in the king's court. In the printedtext of Bracton's book there is a passage, probably interpolatedby some annotator, which goes far beyond this, which declaresthat the king is not only below God and the law, but belowhis court, that is to say, below his earls and barons, for theearls (comites) are so called because they are the king's fellows(socii), and he who has a fellow has a master ( pi kabet sociuwz,kabet magistr7mz) ; they therefore are bound to set a bridleupon him and constrain him to do right1. This passage clearlywas written during the time of revolt, the revolt which led tothe battles of Lewes and of Evesham. The ideal of that revoltwas a small council of magnates, chosen by the barons, whomthe king would be bound to consult, who, if need be, wouldexercise the royal powers. That ideal was not realizedhappily,I think we may say, for it was an oligarchical ideal.The law was left as it was, as it is at this very moment-thatagainst the king law has no coercive power, it has no punishmentfor the king, it cannot compel him to make redress-or,as we say, the king can do no wrong. It was left to later agesto work out consistently the other side of our modern doctrine,namely, that though the king can neither be punished nor sued,Bracton, De Legtbus Angliae, I, 268.The Power of De$ositionno other person, no servant of the king, is protected againstthe ordinary legal consequences of an unlawful act by theking's command.The power of deposing a king is a somewhat differentmatter. The next century presents us with two cases ofdeposition, that of Edward I1 and that of Richard 11. Therewas talk of deposing John, there was talk of deposing Henry 111.Apparently the common opinion of the time was quite preparedfor the deposition of a king who would not ruleaccording to law-any notion of divine hereditary right notto be set aside by any earthly power does not belong to thisage. But the only precedents for deposing a king belongedto an already remote time, and in all probability were butlittle known. The events of I327 and 1399, though theyprove clearly enough that the nation saw no harm in settingaside a bad or incompetent king, prove also that there was nolegal machinery for doing this. We shall see this more clearlywhen these events come before us hereafter. The idea currentin the thirteenth century is not so much that of a power totry your king and punish him, as that of a right of revolt, aright to make war upon your king. It is a feudal idea and adangerous one; the vassal who cannot get justice out of hislord may renounce his fealty and his homage, may defy hislord, may, that is, renounce his affiance, his fealty. This isnot the remedy of an oppressed nation, it is the remedy of anoppressed vassal.This would naturally lead us to speak of feudalism as apolitical or anti-political force ; that is a subject which we willstill postpone; but a little more may here be added about thetheory of the kingship. Already in Henry 111's reign it is thedoctrine of the royal judges, who would not be disposed tonarrow unduly the scope of their master's powers, that theking cannot make laws without the consent of his prelatesand barons. This is brought out by the treatment which afamous passage in the Institutes receives at their hands-sea!et quod princ$i placuit legis habet vigorem. Now underHenry 11, the writer whom we call Glanvill does, as it seemsto me, hint that these words are true of the king of England ;his words however are not very plain, and it is possible that

104 Co~zstitz~tio~zad HistoryPERIODhe did not wish them to be very plain ; however he brings outclearly the matter of fact that Henry legislates with the counselof the magnates, colzsilio $7-ocerz~?nl. In Bracton we may seea distinct step-he cites the words of the Institutes, but so asto give them a quite new meaning ; this I take to be a bit ofdeliberate perverseness, something not far removed from ajest; he knows that the words in their proper sense are nottrue of King Henry-the law has made him king, it is byvirtue of the law that he reigns, and this law sets limits to the$lncita$rinc+is2. Undoubtedly, however, during Henry 111'slong reign a great deal of what we should call law makingwas done without the assent of the national assembly. Thecommon law grew very rapidly; it could grow very rapidlybecause the opinions of the time conceded to the king or tothe king and his selected councillors a considerable power ofmaking new remedies-new modes of litigation, new formsof action. It is not at once seen that to give new remediesis often enough to alter the substantive law of the land.Gradually however this is seen, and complaints against thesenew actions become loud, chiefly because they draw awaylitigants from the feudal courts and from the ecclesiasticalcourts. Bracton writing towards the end of the reign has leftus a curious transitional doctrine. The king can make newwrits, new forms of action ; in strictness such a writ requiresthe consent of the magnates, at least if it concerns land (forland is the subject of the feudal jurisdictions); still the consentof the magnates may be taken for granted ; they consent ifthey do not expressly dissent; and after all it is the king'sduty to find a remedy for every wrong-his solemn swornduty. Such a theory could hardly be permanent, and one ofthe definite results attained by what we call the Barons' Warwas that a limit was set to the king's writ-making power. InEdward's day we find it admitted that new writs cannot bemade without the action of the national assembly-they mustTractatus de Leg-ibur A~zgliae. ProZogzu. " Leges namque Anglicanas, licetnon scriptas, Leges appellari tlou videtur absurdum (cum hoc ipsum lex fit 'quodprincipi placet, legis habet vigorem') eas scilicet, quas super dubiis in consiliodefiniendis, procerum quidem consilio, et principis accidente authoritate, constatesse promulgatas."De Lep'6us AngZiize, I, 38.I The Law Courts 105be sanctioned by statute; indeed so strict has this rule becomethat in 1285 it requires a statute to permit the clerks in theKing's Chancery to vary the old writs slightly so as to fit newcases as they arise, but only new cases which fall under rulesof law already established and which require remedies whichare already given. Henceforth the sphere for judge-made lawis hemmed in by the existing remedies, the writs that havealready been made; to introduce a new form of action requiresa statute. Henceforth for nearly two centuries the growth ofunenacted law is very slow indeed.E. Ad~nitzistratiolz of Jastice.This brings us to the administration of justice. We havealready had occasion to speak of courts of various kinds.Some repetition is unavoidable. The further back we traceour history the more impossible is it for us to draw strictlines of demarcation between the various functions of the state:the same institution is a legislative assembly, a governmentalcouncil and a court of law ; this is true of the witenagemot;it is true, though perhaps less true of the Curia of the Normankings ; traces of its truth are left in our own time ; our highestcourt of law is to this day an assembly of prelates and nobles,of lords spiritual and temporal in parliament assembled ;everywhere, as we pass from the ancient to the modern, we seewhat the fashionable philosophy calls differentiation. Wewill now take a brief review of the whole system of law courtsas it stands in Edward the First's day.There are we may say courts of four great kinds. (I) Thereare the very ancient courts of the shire and the hundred ;these we may call popular courts, or still better, communalcourts-they are courts which in time past have been constitutedby the free men of the district; they are courts whichare now constituted by the freeholders of the district: but agood many of the hundred courts have fallen into privatehands. (2) There are the feudal courts, courts which havetheir origin in tenure, in the relation between man and lord ;there is the manorial court baron for the freehold tenants ofthe manor, in which they sit as judges ; there is the hall-moot

Constitutiona Z HistoryPERIODor customary court of the manor for the tenants in villeinage,in which (at least according to the theory of later times) thelord's steward is the only judge. (3) There are the king's owncentral courts. (4) There are the courts held by the king'sitinerant justices-visitatorial courts, we may for the momentcall them. We leave out of sight the ecclesiastical courts, orcourts Christian, though these were important courts for thelaity as well as for the clergy.Now the preliminary notions with which we ought to startare, I think, these :-(a) The communal courts of the shire andthe hundred are, to start with, fully competent courts for allcauses criminal as well as civil. The kings of the pre-Conquestperiod had apparently no desire to draw away justice fromthese courts. Over and over again they ordain that no one isto bring his suit before the king before justice has failed himin the hundred and the shire. We must not think of thewitenagemot even as a court of appeal-to introduce thenotion of an appeal from court to court is to introduce a fartoo modern conception. The suitor who comes before the kingcomes there not to get a mistake corrected but to lodge acon~plaint against his judges; they have wilfully denied himjustice.(b) By the side of the ancient courts there have grown upthe feudal courts. This process had in all probability beengoing on for a century before the Conquest. After the Conquestthe principle seems admitted that any lord who hastenants may, if he can, hold a court for them. In this disputesbetween tenants are adjudged; in particular if land is indispute and both parties admit that the land is holden of thislord, then his court is the proper tribunal. A great deal ofjurisdiction has thus been taken away from the communalcourts, but jurisdiction of a civil kind. Mere tenure cannotgive a criminal jurisdiction ; if the lord has this, he has it byvirtue of some grant from the king.(6) After the Norman Conquest the king's court has, wemay say, three main functions: (i) as of old it is a court oflast resort in case of default of justice, (ii) on feudal principleit is a court for the tenants in chief, (iii) it is admitted thatthere are certain causes in which the king has a special interestI Pleas of the Crowiv 107and which must come either before his own court or before acourt held by some officer of his :-these are the pleas of thecrown.We have now to watch the growth of this royal jurisdictionand will begin by speaking of the pleas of the crown.Already before the Conquest we find that there arecertain criminal cases in which the king is conceived to have aspecial interest. Thus in the Laws of Canute it is said 'Theseare the rights which the king has over all men in Wessexfg~und-bgce,hdm-sbcne, forstal,$ymena-fyrm6e and fyrd-wile1.'Apparently in case of any of these crimes no lord may presumeto exercise jurisdiction-unless it has been expressly grantedto him ; such cases must come before the king, or his officerthe sheriff, and the consequent forfeitures are specially theking's. A word as to the nature of these crimes:-mundbryceis breach of the king's special peace or protection, thisas we shall soon see becomes a matter of the utmost moment;hdm-sbctze is housebreaking, the seeking of a man in hishouse ; forstal seems to mean ambush ; Jynzetzn-fyrm8e thereceipt of outlaws ; fyrd-wite the fine for neglecting the summonsto the army. In these cases, it is conceived there issomething more than ordinary crime, e.g. homicide or theft,there is some injury to the king, some attack upon his ownpeculiar rights.The next list of pleas of the crown that we get is found inthe Leges Henrici Primi (I 108-18, $ 10). It is much longerand so instructive that I will translate it : ' Breach of the king'speace given by his hand or writ ; danegeld ; contempt of hiswrits or precepts; death or injury done to his servants; treasonand breach of fealty; every contempt or evil word againsthim; [castle building-castellatio triunz scannorz~m;] outlawry;theft punishable with death ; murder ; counterfeiting hismoney ; arson ; katzsoke~z ; forestal; fyrdwite ; 3ymenafyrm'6e; premeditated assault ; robbery; streetbreach; takingthe king's land or money; treasure trove; shipwreck; waif ofthe sea; rape; forests; reliefs of barons; fighting in the king'shouse or household ; breach of peace in the army; neglectingto repair castles or bridges; neglecting a summons to theLiebermann, Gesetze der Angelsadse~r, vol. I, p. 317.

Constitutional HistovyExtensioaz ofthe Ki~g's Peace I 09army; receiving an excommunicate or outlaw; breach ofsurety; flight in battle; unjust judgment; default of justice;perverting the king's law1.' It is a most disorderly list. Thewriter has apparently strung together all cases in which eitherin ancient or modern times the king has asserted a specialinterest. Observe how criminal cases are mixed up with theking's fiscal rights-by fiscal rights I mean such rights as thatto treasure trove, to shipwreck and goods thrown up by thesea. This is very instructive ; one of the chief motives thatthe king has for amplifying his rights is the want of money ;the criminal is regarded as a so,urce of income. It will strikeyou that by a little ingenuity on the part of royal judgesalmost all criminal cases and very many civil cases also canbe brought within the terms of this comprehensive list. Butyou will further observe that no such generalization has yetbeen made, it is not yet said that all crime, or all seriouscrime, or all acts of violence are causes for royal cognizance.There is one term, however, which occurs in both theselists which can be so extended as to cover a very large spacethatis the mund-bryce of Canute's laws, which in the LegesHe~zrici appears as infortio pacis regiae per manum vel brevedatum. Let us go back a little. The idea of law is from thefirst very closely connected with the idea of peace-he whobreaks the peace, puts himself outside the law, he is outlaw.But besides the general peace which exists at all times and inall places, and which according to ancient ideas is the peaceof the nation rather than of the king, every man has his ownspecial peace and if you break that you injure him. Thus ifyou slay A in B's house, not only must you pay A's price orwergild to his kinsfolk, but you have broken R's peace andyou will owe B a sum of money, the amount of which willvary with B's rank-you have broken B's peace or mund; themu~zd of an archbishop is worth so much, that of an ealdormanso much, and so forth. Like other men the king has his peace.In course of time, we may say, the king's peace devours allother peaces-but that has not been effected until near theend of the twelfth century. In the Leges Edwardi Confessoris($ 12) which represent the law of the first half of the century,Liebermann, Gesetze o'er A9zgeZsachsetz, vol. I, p. 556.the king's peace covers but certain times, places, and persons.Pax Regis mzdtiplex est-the king's peace is manifold. Firstthere is that which he gives with his own hand. Then thereis the peace of his coronation day, and this extends eight days.Then the peace of the three great festivals, Christmas, Easter,Pentecost: each endures for eight days. Then there is thepeace of the four great highways-the four ancient Romanroads which run through England. To commit a crime inone of these peaces is to offend directly against the king.Before the end of the century there has been a greatchange, a great simplification ; apparently it has been effectedthus:-Under the Norman kings, the mode of bringing acriminal to justice was called an appeal (appelZz~m); this wordis not used in our modern way to imply the going from onecourt to a superior court-but means an accusation of crimebrought by the person who has been wronged-the person,e.g., whose goods have been stolen or who has been wounded.Well, the king's justices seem to have allowed any appellor tomake use of the words ' in the king's peace' whenever hepleased, and did not allow the appellee to take exception tothese words-did not allow him to urge that though he mighthave committed theft or homicide still he had not broken theking's peace, since the deed was not done against a person, orat a time or place which was covered by the king's peace.Fictions of this kind are very common in our legal history,they are the means whereby the courts amplify their jurisdiction.Any deed of violence then, any use of criminal force,can be converted into a breach of the king's peace and bebrought within the cognizance of the king's own court.Further, under Henry I1 we find a new criminal proceduregrowing up by the side of the appeal, once a specially royalprocedure-this is the procedure by way of presentment orindictment. Under the Assize of Clarendon royal justicesare sent throughout England, to inquire by the oaths of theneighbours of all robberies, and other violent misdeeds ; thosewho are accused, presented, indicted by the sworn testimonyof the neighbours, by the juries of the hundreds and the vills,are sent to the ordeal. This is an immense step in the historyof criminal law. A crime is no longer regarded as a matter

I 10 Constitutional History PERIODmerely between the criminal and those who have directlysuffered by his crime-it is a wrong against the nation, andthe king as the nation's representative. This procedure byindictment the king keeps in his own hands; it is a speciallyroyal procedure ; those who are thus accused of crime mustbe brought before the king's own justices.A parallel movement, the details of which are as yet veryobscure, has been giving to all the graver crimes the characterof felony1. The origin and original meaning of the word aredisputed, but the best authorities now tell us that it is Celticand carries at first the meaning of baseness ; it is said to beconnected with the Latin fallere, and our verb to faid. Be thatas it may, two things seem fairly clear, (I) that the word cameto us from France with the Normans, (2) that it then meant thespecifically feudal crime, the most heinous of all crimes in theopinion of that age, the betrayal of one's lord, or treacheryagainst one's lord. For some time it is thus used in England;thus in the Leges He~zrici felony is still one crime among many.We observe two things about it, that it is a crime punished bydeath, and that it is a crime which causes an escheat of theland which the criminal holds. But before the end of thetwelfth century we find that this word has lost its specificsignification, that it has a wide meaning. Whenever an appealis made, be it for homicide, or wounding, or theft, the appelloralways states that it was done not only in pace dominiRegis, but also in fdonia. We even find that these wordsare absolutely essential; if they are not used the appeal isnull. Here again, I take it, fiction has been at work-thejudges have encouraged the use of this term, and have notallowed accused persons to protest that though there mightbe homicide, wounding or robbery, still there was no felony.Two motives made for this :-the old system of money compositionswas breaking down ; at the beginning of the twelfthcentury it is still in existence, though capital punishment hasbeen gaining ground; at the end of the century it has disappeared-everycrime of great gravity has become a capitaloffence. Secondly, the principle that felony is a cause ofThe subject is treated at length in the History of English Law, vol. I,pp. 303-5, v01. 11, pp. 462-511.escheat, made it very desirable in the king's eyes, and the eyesof the lords, that as many crimes as possible should be broughtunder this denomination. Thus all the graver crimes becamefelonies. We never get to a definition of felony ; but we doget to a list of felonies.I think we may say that from the beginning of thethirteenth century onwards, all causes that are regarded ascriminal are pleas of the crown,placita coronae, save some pettyoffences which are still punished in the local courts, but evenover these the sheriff is now regarded as exercising a royaljurisdiction. To this point we shall return once more; wehave meanwhile to watch the growth of royal jurisdiction incivil causes.This is by no means a simple matter ; the process is veryslow, and indeed even in the present century our civil procedurebore witness of a time when the king's court had not yet takenupon itself to act as a court of first instance in the ordinarydisputes of ordinary people. We may, however, indicate sixprinciples which serve to bring justice to the king's court.(I) From the outset it is a court to which one may go,for default of justice in lower courts. Under the Normankings we find that frequently a litigant, who in the ordinarycourse is going to sue in the court of a feudal lord, will go tothe king in the first instance, and procure a writ, a mandatedirecting the lord, ordering him to do justice in his court tothe applicant, and adding a threat, quod nisi feceris vicecomesmezrs faciet-if you won't do it my sheriff will-the actionwill be removed out of your court into the county court, andthence it can be removed into the king's own court. This isa writ de recto tenendo, a writ of right.(2) Henry I1 must, it would seem, have ordained that noaction for freehold land shall be begun in a manorial courtwithout such a writ. I say he must have ordained it: wehave no direct evidence of this : but Glanvill lays down theprinciple in the broadest terms, no one need answer for hisfreehold without the king's writ, a writ directing the lord todo right-and we can say pretty positively that this was notlaw before Henry's day. You will notice that it is a seriousinvasion on feudal principles ; when freehold is at stake, the

Constitutional Historylord cannot hold his court or do justice until the king sets himin motion-the jurisdiction may spring out of tenure, but it isnot beyond royal control. The excuse for such an interferencemay lie in that royal protection of possession of which we aresoon to speak.(3) In an action for land in a manorial court begun bywrit of right, Henry I1 by some ordinance, the words of whichhave not come down to us but which was known as the grandassize, enabled the holder of the land to refuse trial by battleand to put himself upon the oath of a body of twelve neighbourssworn to declare which of the two parties had the greater rightto the land. This was called putting oneself on the grandassize ; and the body of sworn neighbours was known as thegrand assize.(4) Henry 11, as we have before remarked, took seisin,possessio~~ as distinct from ownership, under his special protection-menwho consider that land is unjustly withheldfrom them are not to help themselves; there is to be nodisseisin without a judgment. He who is thus disseisedshall be put back into possession without any question as tohis title. This protection of possession is, I think, closelyconnected with that extension of the king's peace which wehave been watching. He who takes upon himself to ejectanother from his freehold, breaks the peace, and the peace isthe king's. This possessory procedure the king keeps in hisown hands-it is a royal matter, the feudal courts have nothingto do with it. Thus there grows up a large class of actions(the possessory assizes) relating to land, which are beyondthe cognizance of any but the king's justices, and these justicestake good care that the limits of these actions shall not benarrow; perhaps indeed they are not always very careful todraw the line between disputes about possession which belongto them, and disputes about ownership which should go tothe royal courts.(5) If we turn back to the list of royal rights contained inthe Leges Hetzrici, we find among them-$laciturn breviwn. vedpraecepton~m ejzrs corztem@torz~m-pleas touching the contemptof his writs or precepts. Now here is an idea of whichgreat use can be made : B detains from A land or goods orThe Writ Pyaecz$eowes A a debt ; this may not be a case for the royal jurisdiction-butsuppose that the king issues a writ or preceptordering B to give up the land or goods or to pay the debt,and B disobeys this order, then at once the royal jurisdictionis attracted to the case. The king's chancellor begins to issuesuch writs with a liberal hand. A writ is sent to the sheriff insuch words as these: Command B (Praecz$e B) that justly andwithout delay he give up to A the land or the chattel or themoney which, as A says, he unjustly detains from him, and ifhe will not do so command him to be before our court on sucha day to answer why he hath not done it. Thus the disputebetween A and B is brought within the sphere of the king'sjustice; if B is in the wrong he has been guilty of contemningthe king's writ. Such writs in Henry 11's time are freely soldto litigants : but this is somewhat too high-handed a proceedingto be stood, for in the case of land being thus demanded,the manorial courts are deprived of their legitimate jurisdiction.So we find that one of the concessions extorted fromJohn by Magna Carta is this: The writ called Praec$e shallnot be issued for the future, so as to deprive a free man of hiscourt, i.e. so as to deprive the lord of the manor of cases whichought to come to his court, his court being one of his sourcesof income1. To a certain extent in cases of land this putsa check on the acquisitiveness of the royal court. But even asregards land, it is evaded in many different ways, in particular,by an extension of the possessory actions which make themserve the purpose of proprietary actions. As regards chattelsand debts the king has a freer hand.(6) The notion of the king's peace is by no meansexhausted when it has comprehended the whole field ofcriminal law : mere civil wrongs, ' torts ' as we call them, canbe brought within it-a mere wrongful step upon your land,a mere wrongful touch to your goods or to your person can beregarded as a breach of the peace; any wrongful applicationof force, however slight, can be said to be made vi et armis etcontra pacem domini Regis: in such cases there may be nofelony and no intention to do what is wrong-I may believethe goods to be mine when they are yours, and carry them offM. C. c. 34. McKechnie, pp. 405-13,

114 Cozzstitutionnt History PERIODin that belief; still this may be called a breach of the peace.Hence in the thirteenth century a large class of writs grows upknown as writs of trespass ; for a long time the procedure isregarded as half-civil, half-criminal : the vanquished defendanthas not only to pay damages to the plaintiff, he has to paya fine to the king for the breach of the peace. Gradually (butthis is not until the end of the Middle Ages) the fine becomesan unreality : actions of trespass are regarded as purely civilactions-and in course of time this form of action and formsderived out of it are made to do duty instead of all, or almostall, the other forms.Armed with these elastic principles it was easy for theking's courts to amplify their province. By the beginning ofEdward's reign we may, I think, say that all serious obstaclesto the royal jurisdiction had been removed. The royal courtshad in one way and another become courts of first instancefor almost all litigation. But the extremely active legislationof his reign and the growth of parliament set a limit to theinvention of new actions. It was now recognized that therewere a certain number of actions to which no addition couldbe made except by statute. There were a certain number ofwrits in the royal Chancery; these were at the disposal ofevery subject; they were to be had on payment of the customaryfees ; they could not be denied ; by these writs actionswere began, were originated; they were brevia originalia,original writs. A certain power of varying the stereotypedforms was allowed by the Statute of Westminster I1 (1285), andof this in course of time some good use was made; but fromEdward's day down to the middle of the present century thedevelopment of common law was fettered by this system oforiginal writs-writs which had been devised for the purposeof bringing before the king's court litigation which in moreancient times would have gone to other tribunals.But the king's court could not have succeeded in thusextending the sphere of its activity if it had not been able tooffer to suitors advantages which they could not get elsewhere.Royal justice was a good article-that is to say, a masterfulthing not to be resisted. There were many processes whichthe king could give which were not to be had in lower courts.Anciezzt Methods of ProofTo describe some of these would take us too deeply into thetechnicalities of legislation. But there is one royal boon, regalebe~ze$ciunz, as Glanvill calls it, which has had a most importantinfluence on the whole of our national history-trial by jury.In order to understand its history we must say a little aboutthese modes of trial and of proof which in course of time gaveway before it.Now the first thing to note about the procedure in thecourts before the Conquest is that proof comes after judgment.This may sound like a paradox. It may seem to us that thejudgment must be the outcome of the proof. By proof thejudges are convinced, and being convinced give judgmentaccording to their conviction. Rut the old procedure doesnot accord with this to us very natural notion. Suppose twopersons are litigating-A charges B with having done somethingunlawful-we find that the judgment takes this form,that it is for A (or as the case may be for B) to prove his case.The judgment decides who is to prove, what proof he is toproduce-and what will be the consequence of his succeedingor failing to give the requisite proof. This matter becomesclearer when we consider the known means of proof. Theyare oaths and ordeals-and of oaths again there are severaldifferent kinds: there is the simple unsupported oath of theparty, there is the oath of the party supported by compurgatorsor oath-helpers, and there is the oath of witnesses. Wemust look at these modes of proof a little more closely.In some few cases A having brought some charge againstB, it will be adjudged that B do prove his case simply by hisown oath. This being so, B has to swear solemnly that hehas not done that which is alleged against him. If he can dothis then the charge against him fails. This may seem a veryeasy way of meeting an accusation, and such probably it was,and in but few cases would so simple a proof as this have beensufficient. Still even in this ceremony it was possible to fail :the swearer had to use exactly the right words, and a slipwould be fatal to his cause. I have said that we have no textbookof Anglo-Saxon law. But one of the things that looksmost like a text-book is a brief collection of the oaths to besworn on different occasions. They are very formal and, as it

Constitutionnl Historyseems, half-poetical. Probably the utmost accuracy wasrequired of the swearer. Besides we should remember thatan oath was very sacred. One may hope that in the courseof history the respect for truth increases-but just for thisreason, as it seems to me, the respect for an oath as suchdiminishes. We think that we ought to tell the truth, thatthis obligation is so strict that no adjuration, no imprecationcan make it stricter. To reverence an oath as an oath is nowthe sign of a low morality. Not so in old time:-the appealto God makes all the difference ; men will not forswear thernselvesthough they will freely lie; between mere lying and thefalse oath there is a great gap. But generally a defendantwas not allowed to meet a charge in a fashion quite so simple;he was required to swear, but to swear with compurgators.Now a compurgator or an oath-helper is a person who comesto support the oath of another by his own. For instance Acharges B with a debt; it is adjudged that B do go to theproof with twelve oath-helpers. This being so then B willfirst swear in denial of the charge, and then his compurgatorswill swear that they believe his oath-'By God the oath isclean and unperjured that B hath sworn1-they swear notdirectly that B does not owe the money, they swear to abelief in his oath. Now this process of compurgation is foundnot only in Anglo-Saxon law, but in all the kindred laws ofthe German and Scandinavian nations, nor in these only, forthe Welsh laws about compurgation are particularly full andparticularly interesting. Occasionally we come across a requirementthat the oath-helpers shall be of kin to the principalswearer, and this has led to some interesting speculationsas to the origin of this procedure. Obviously if what werewanted was :he testimony of impartial persons to the truthfulcharacter of the accused, one would not naturally seek thisfrom his next of kin, who will very naturally stand by theirkinsman. In days when the bond of blood-relationship wasfelt as very strict, when men were expected to espouse thequarrel and avenge the death of their kinsman, they canhardly have been thought the best witnesses to his honesty.It has therefore been thought by some (and if we may refer tothe Welsh laws they will fully bear this out) that compurga-tion takes us back to a time when the family is an importantunit in the legal system. Any charge which primarily affectsan individual is secondarily a charge against the family towhich he belongs:-that family is bound to make compensationfor the wrongs that he does, and even to pay his debts ifhe will not pay them. But if this theory be true-and I thinkthat there is much in its favour-our ancestors had passed outof this primitive condition before they appear in the light ofclear history: the family was no longer so important, thestate had a direct hold on the individual. It is but rarelythat we hear of kinsmen as compurgators. Generally it isonly required that the swearer shall produce good and lawfulmen to the requisite number. That number varies fromcase to case-sometimes it is as high as 48; but 12 is a verycommon number-a fatally common number, for it misleadsthe unwary into seeing a jury, where in truth there are butcompurgators. But the system is very elaborate. For instancewe find a sort of tariff of oaths-the oath of a thane is worththe oaths of six ceorls, and so forth. Again in cases of gravesuspicion the swearer has to repeat the oath over and overagain with different batches of compurgators. In comparativelyrecent times, the thirteenth and fourteenth centuries,compurgation still flourished in the city of London, which hadobtained a chartered immunity from legal reforms:-we readhow the Londoner may rebut a charge even of murder by anoath sworn with 36 compurgators-how, in another case, hemust swear nine times before nine altars in nine churches.Then again in the Anglo-Saxon days we find that occasionallythe judge names a number of men from among whom thedefendant has to select his compurgators. This seems theoutcome of an attempt to make the procedure more rational,to obtain impartial testimony. But normally the personwho has to swear chooses his own compurgators, and if heproduces good and lawful men, i.e. free men who have notforfeited their credibility by crime, this is enough. Thenagain the compurgatory oath is sometimes made more or lessdifficult by the requirement or non-requirement of perfectverbal accuracy-sometimes it is sworn in verborurn observanciis,sometimes not-that is, sometimes a slip will be fatal,

Constitutio~ad Historysometimes not. The oath with compurgators, made more orless onerous in these various ways according to an elaboratesystem of rules, seems the general proof of Anglo-Saxon law-both in the cases which we should call civil, and in thosewhich we should call criminal. The man of unblemishedreputation is in general entitled to clear himself of a chargein this manner : the man who has been repeatedly accused orwho cannot find compurgators must go to the ordeal.But the law knows of other witnesses besides compurgators-or if we do not choose to consider these compurgators aswitnesses, then we must say that it knows of witnesses asdistinguished from compurgators. But these witnesses, likecompurgators, do not appear until after judgment-they donot come to persuade the court to give this or that judgment-they come there to fulfil the judgment already given to theeffect that the plaintiff, or (as the case may be) defendant, doprove his case with witnesses. It has been adjudged thatA do prove his assertion by witnesses: A brings his witnesses;they do not come to be examined ; they come to swear, to swearup to a particular formula, to swear up to A's assertion-thisis all that is required of them. They must be good andlawful men-but if they are this, then B cannot object tothem, cannot question them; if he thinks them forsworn, thenhis remedy, if any, is against them-he must charge themwith perjury. Their evidence is not put before the court asmaterial for a judgment; judgment has been already given.To decide a dispute by weighing testimony, by crossexaminingwitnesses, by setting evidence against evidence andunravelling facts-this is modern ; the ancient mode is to fallback at once on the supernatural, to allow one party or theother to appeal to Heaven-to leave the rest to 'whatevergods there be.' This ' formal one-sided witness procedure '(that is the best phrase that I can find for it) is not so commonin Anglo-Saxon law as the procedure by compurgation-butthere are occasions for it. For instance many transactionssuch as sales of goods are required to be completed in thepresence of witnesses and official witnesses. This is part ofthe police system. The typical action of Anglo-Saxon lawseems the action to recover stolen cattle-doubtless, cattleWitnesseslifting was an extremely common form of wrong-doingandmany of the dooms are concerned with its prevention.A man who buys cattle must buy them in the presence of theofficial witnesses chosen for each hundred and borough, otherwiseshould he buy from one who is a thief, he is like to findhimself treated as a thief And there are other purposes forwhich witnesses may be produced ; but it seems that there isno power to compel a person to come and give evidence unlessat the time when the event took place he was solemnly calledto bear witness of it. If something happens and you thinkthat hereafter you may need the testimony of the bystanders,you must then and there call upon them to witness the fact,otherwise you will have no power of compelling them to cometo court and prove your case. But the matter on whichI would chiefly insist is the one-sided character of procedure,because here is the gulf-the, as it seems, insurmountable gulf-between the Anglo-Saxon witnesses and the jurors of Henrythe Second's reign. The witness is called in by the partytheparty to whom the proof has been awarded-to swear upto his case; the juror is called in by the sheriff or by the courtto swear to the truth whatever the truth may be.The ordeal was used chiefly, though not, I think, exclusively,in the case of the graver charges, criminal charges aswe should call them. This of course is a direct and openappeal to the supernatural, the case is too hard for man, so itis left to the judgment of God. There seems little doubt thatordeals were used by our forefathers in the days of theirheathenry, though unfortunately almost all our evidence comesfrom a time when they have become Christian ceremoniespractised under the sanction of the church'. Four ordealsare known to Anglo-Saxon Iaw; the ordeal of hot iron: theaccused is required to carry hot iron in his hand for nine steps,his hand is then sealed up and the seal broken on the thirdday, if the hand has festered then he is guilty, if not, innocent;the ordeal of hot water: the accused is required to plunge hishand into hot water, if the ordeal is simple, to the wrist, ifthreefold, then to the cubit ; the ordeal of cold water: theaccused is thrown into water, if he sinks he is innocent, if he' Liebermann, Gesetze der Angelsnchsen, pp. 401-29.

120 Constitzttional History PERIODfloats he is guilty ; the ordeal of the morsel : a piece of bread orof cheese an ounce in weight is given to the accused, havingbeen solemnly adjured to stick in his throat if he is guilty. I donot wish to dwell on these antiquities, which are sufficientlydescribed in many accessible books1. Certainly it is verydifficult to understand how this system worked in practice.One form of the ordeal seems to have been unused by theAnglo-Saxons, namely, trial by battle, the judicial duel. Thisis a very curious fact, for I believe that in all the kindredsystems of law the duel has a place. Perhaps we mayattribute this to the action of the church, for against this formof ordeal the church very early set its face, and in Englandthe church was very strong, popular and national. At anyrate this seems the fact-there is no mention of trial by battlein the Anglo-Saxon laws, and I believe no evidence that anysuch trial took place in England before the Norman Conquest.Besides we have an ordinance, I believe, an undoubtedlygenuine ordinance of William the Conqueror, which treats theduel as the form of trial appropriate for Normans. Now thisprobably constituted the one great difference between theNorman and the Anglo-Saxon procedure. Compurgationand the other ordeals are common to both systems, but in theNorman many questions are decided by battle, while the placeof the duel in the Anglo-Saxon system is filled partly by theother ordeals, partly by those very elaborate forms of cornpurgationof which I have spoken. I speak of trial by battleas an ordeal, and this it seems to be. In theory it is not anappeal to brute force, but an appeal to Heaven.We cannot find the germ of trial by jury either in theAnglo-Saxon procedure, or in the ordinary procedure of theNorman courts. Still the germ must be found somewhere,and the research of these last days has gradually been concentratingitself on one particular point, the prerogativeprocedure of the court of the Frankish kings.I cannot speak of this matter with any minuteness. Itmust suffice that the Franks had occupied provinces of theRoman Empire far more thoroughly Romanized than our ownReferences nlay be found in what is now the best and most accessible ofthese books, The History of E~zglzsk Law, vol. 11, p. 596.Orzgin of the Jurycountry; that a powerful monarchy grew up, that the Frankishking became Roman Emperor. Already I have said somethingabout the growth of kingship and kingly power in thiscountry. Abroad the same process went on, but much morerapidly, fostered by imperial Roman traditions. The Frankishking seems to have inherited many of the powers of theRoman government, and among these many procedural prerogatives; the formal procedure of the old Germanic courtsdid not apply to him, he could dispense with it, could for hisown purposes make use of speedier and more stringent processes.We see something of the same kind in the Englandof a much later day. In litigation the king enjoys all mannerof advantages. What is more we find phrases used of theFrank king's court which incline us to say that it was in theold English sense a Court of Equity, as well as of Law-thatis to say, when compared with the popular communal courtsit seems unhampered, untrammelled by procedural rules, it candevise new expedients for doing justice, for eliciting the truth.Then we find further that these Frankish kings and emperorsto protect their own rights, the rights of the crown, make useof a means of getting at the truth not employed by the oldercourts. For instance, there being question as to some landwhether it be demesne of the crown or no, an order will begiven to a public officer to inquire into this by the oaths of theneighbours. It seems that such inpuisitiortes (for such isthe term usually employed) were frequently ordered for theascertainment of crown rights. The crown thus places itselfoutside the ordinary formal procedure; for its own purposesit will make a short cut to the truth1. Nor is this all : theseFrankish kings assume the power of granting to others theprivileges which they themselves enjoy-in particular ingranting to the religious houses which they have founded, animmunity from the formal procedure of the ancient courts:-if the title of the monastery to its lands be called in question,then the matter is to be tried by a royal judge; there is to beWe are here forcibly reminded of our own inquests of office-the sheriff orthe escheator summoning a jury to testify whether someone has died without anheir, or has forfeited his land, in order that the rights of the crown may be knownand the land seised into the king's hand. F. W. M.

122 Constitu t ionnl History PERIODno judicial combat ; the judge is to summon the neighbours,and by their oath the question is to be decided. Here seemsto be just what we want as the germ of trial by jury. Abody of neighbours is summoned by a public officer to testifythe truth, be the truth what it may, about facts and rightspresumably within their knowledge. Lastly, a somewhatsimilar process is used for the detection of crimes. Procedureby private accusation is found insufficient for the peace of therealm, and the king finds himself strong enough to order thatthe men of a district be sworn to accuse before royal officers,those who have been guilty of crime. These royal officers(missi they are called) sent out to receive such accusationsand to hold inquisitions, remind us strongly of our ownitinerant justices, and indeed it seems very likely that ourjusticiarii itinerantes are in spirit the direct descendants of theFrankish ~nissi.It is now very generally allowed that this is the quarter inwhich we must look for the first rudiments of trial by jury,the prerogative procedure of the courts of the Frankish kingsand emperors. Rut it must at first sight seem a very strangething that an institution, which in its origin was peculiarlyFrankish, became in course of time distinctively English. InFrance this inquisition procedure perished, transplanted toEngland it grew and flourished, and became that trial by jurywhich after long centuries Frenchmen introduced into modernFrance as a foreign, an English institution. How was this ?The Frankish Empire, let us remember, went to wreckand ruin and feudal anarchy. But in one corner of its domainthere settled a race whose distinguishing characteristic seemsto have been a wonderful power of adapting itself to circumstances,of absorbing into its own life the best and strongestinstitutions of whatever race it conquered-Frankish, Italian,or English. The Normans conquered England; they hadpreviously conquered Normandy: for 150 years or thereaboutsthey had been settled on Frankish territory. Andin their civilization they had become Frankish; they hadthrown aside their heathenry and become Christians; theyhad forgotten their Scandinavian tongue and learned theRomance language sf those whom they conquered. The legalI The Norman Inquest 123history of Normandy during those I 50 years, from 912 to1066, is particularly obscure, but it seems sufficiently provedthat the Norman dukes assumed and exercised that powerof ordering inquisitions which had been wielded by theFrankish kings, of establishing a special procedure by wayof inquest for the ascertainment and protection of ducalrights, and of the rights of those to whom the duke hadgranted a special immunity from the formal procedure ofthe ordinary courts. We find, for example, ducal chartersgiving such privileges to religious houses, very similar to thecharters of the Frankish kings.Then so soon as England is conquered we find the Normandukes, now kings of England, ordering inquisitions withintheir new domains. One of these is very famous, for it isthe Doomsday inquest. The king sent out barons who madethe great survey on the oath of the sheriff, and all the baronsand Norman landowners of the shire, and of the priest, reeveand six villagers (viZZanz) from every township. This wasa fiscal inquisition on a very large scale; the prerogativeprocedure whereby the Frankish kings had protected therights of the crown, ascertained the limits of the royal domainand so forth, was now applied to the whole of a conqueredkingdom. This is a splendid and notorious instance, but itdoes not stand alone, and we find the Norman kings orderinginquisitions not merely to protect their own rights, but alsoto protect the rights of those who acquired this privilegeacquiredit for the most part for valuable consideration, forsuch privileges are vendible. Thus we have a writ of theConqueror himself, ordering an inquisition in favour of thechurch of Ely; a number of Englishmen who knew thestate of the lands in question in the days of Edward theConfessor are to be chosen and are to swear what they know1.There are other instances of such writs.Hitherto, whether we have looked at the Frank empire,the Norman duchy or the English kingdom, the inquisitionby the oath of neighbours has appeared as something exceptional-aroyal or ducal privilege, no part of the ordinaryprocedure of ordinary litigation : indeed it is rather a fiscal or' Libn* Eliensis, I, 256.

The Assizesadministrative, than a judicial institution. But in Normandyand in England it became a part of the ordinary procedureopen to every litigant. This no doubt was the work ofHenry I1 ; of this we have ample evidence, though we havenot in all cases the text of the ordinances whereby the workwas accomplished. Let us see the various forms which theinquisition or inquest now assumes.(I) In the first place we have the grand assize. When Ademands land from B, B instead of fighting or obtaining achampion to fight for him, may put himself upon the grandassize of our lord the king. Four knights are then chosenby the parties and they elect twelve knights, who come beforethe king's justices to testify whether A or B hath the greaterright to this land. These jurors or ' recognitors ' you see arecalled in not as judges of fact who are to hear the evidence ofwitnesses, but as witnesses, and a strict line between questionsof fact and questions of law has not yet been drawn-theyspeak as to rights, not merely as to facts.Glanvill in a memorable passage brings out the character,the royal origin, of this new procedure1. The grand assize,he says, is a royal boon by which wholesome provision hasbeen made for the lives of men and the integrity of thestate, so that in maintaining their right to the possession oftheir freeholds the suitors may not be exposed to the doubtfulissue of trial by battle. This institution (he adds) proceedsfrom the highest equity, for the right which after long delaycan scarcely be said to be proved by battle, is by the beneficialuse of this constitution more rapidly and more convenientlydemonstrated. We have here then no popular institutiongrowing up in the customary law of our race, but a royalboon, regale pioddam bene$cium.(2) Then again Henry institutes those possessory assizeswhich we have more than once mentioned. A person whohas been ejected from possession of his freehold, who has been'disseised,' can obtain a writ directing the sheriff to summontwelve men to testify before the king's justices whether therehas been a disseisin or no. Here we approach one step nearerDe Legibus Angliae, 11, 7. Select Charters, p. 161.to the trial by jury of later times ;-the question submitted tothese recognitors is more definitely a question of fact-hasthere been seisin and disseisin-not who has the greater right;but still these recognitors are summoned in as witnesses, asneighbours who are likely to know the facts.(3) By the establishment of the grand assize and of thepossessory assizes, a great step is made in the history of trialby jury. The royal process of ascertaining facts and rightsby the sworn testimony of a body of neighbours is now placedat the disposal of ordinary litigants; partly this may be inthe interests of justice, but also it is in the interest of a kingconsolidating his realm, struggling with feudalism, desirousof making himself the one fountain of justice. But as yetthis procedure by inquisition or recognition has a very definitescope: it is appropriate to certain actions and only tocertain actions, and the form of the recognition varies withthe form of the action-thus in the grand assize four knightselected by the parties elect the twelve recognitors, in thepossessory assizes the twelve recognitors are directly summonedby the sheriff. And the question for the recognitorsis determined by the form of the action. Thus in the grandassize it is whether demandant or tenant hath the better rightto hold the land; in the novel disseisin, it is whether thedefendant unjustly and without judgment disseised the plainti&These assizes are the outcome of definite legislation, but theprocedure by recognition, once made common, spreads beyondthe original bounds-gradually and without legislation. Wefind plaintiffs and defendants in all manner of actions purchasingfrom the king the right to have a recognition orinquest to determine some disputed point. By slow degreeswhat has been a purchasable favour becomes an ordinaryright, and the sum which the party has to pay to the kingbecomes less and less a variable price, more and more adefinite tax or court fee fixed by custom. It is a slow processby which this recognition procedure makes head anddisplaces the older methods of proof, the unilateral witness,procedure and compurgation. There is no one moment atwhich we can say that it becomes law that questions of factmust go to a jury, to a body of sworn recognitors. In certain

Constitutionad Historyforms of action, the older processes maintained their footing.Thus even in the present century, there were certain actionsin which a defendant might have recourse to compurgation;and for this reason those actions were never brought : meanshad long ago been discovered of bringing other actions in theirstead. However, the new procedure slowly became the rule,and the old procedure the exception; in general disputedquestions would be settled by the oath of the country, wouldbe settled by trial by jury-by a jury (jarata); graduallythis word came into use and was contrasted with assisa.The word assisa, as already remarked, implies a positiveordinance; it is a procedure which, as we should say, isstatutory, and you should understand that the old assizesmight have been used and were occasionally used even inthe present century. They were not abolished until 1833,but long before that had become uncommon, their workbeing done for the most part by less cumbrous and antiquatedmachinery. Hut by the side of the assizes, theregrew up the practice of sending to a body of recognitorsquestions of fact which arose out of the pleadings in anaction ; a body of jurors thus called in was a jury, jurata,as contrasted with an assize, assisa. In an assize, the veryfirst step was to obtain a writ directing the sheriff to summontwelve men to answer a particular question, e.g. whether Adisseised B; the question for the assize was formulated inthe original writ. Take another action, e.g. an action oftrespass-; the original writ says nothing of any recognitors,nothing of any mode of trial; A is summoned to answerbefore the king's court why he assaulted and beat B; thenA and B plead before the court until they come to anissue about some question of fact or question of law; ifit be a question of fact, then a jury (jurata) is summonedto answer this question-a question which has arisen out ofthe pleadings-not a question formulated in the original writ.(4) In dealing with civil, before criminal, procedure wehave been following the historical order. What we are aptto think the very typical case of trial by jury, the trial of aman for crime by a petty jury after a grand jury has indictedhim, is the last development of the institution which has beenThe Accusing Juryunder our examination. But we have first to speak of theaccusing jury, of what comes to be the grand jury of moderntimes. Here again, it is an ordinance of Henry the Secondthat establishes the procedure as normal. If any trace at allof a jury, or of anything that is on its way to become a jury,is to be found in the Anglo-Saxon laws, it is the trace of anaccusing jury. In one of the laws of Ethelred, we read howin a particular case the twelve eldest thanes are to go outand swear on the relic that they will accuse no innocent manand conceal no guilty man. It is conceivable that this lawhas a general import, and that by the end of the tenth centuryit was part of the procedure of the local courts that a body ofneighbours should be sworn to present the crimes whichhad come to their knowledge. But it is difficult for want ofcontinuous evidence to connect this law with the measures ofHenry the Second, and the meaning of Ethelred's law is muchdisputed. On the other hand, as already said, the accusingjury was an element in the procedure of the Frankish courtsunder the Carolingian kings, and produced in Normandyunder the Norman dukes. It may be then that Henry reformedor revived an ancient English institution, but moreprobably we have here another offshoot of the royal andfiscal inquisition. To ascertain and protect the rights of thecrown is the main object, and it seems almost a by-end thatincidentally crime may thus be discovered and suppressed.The itinerant judges are supplied with lists of inquirieswhich they are to lay before juries representing the varioushundreds which they visit. These lists of inquiries are knownas articles of the eyre, capitukt itineris, and in the main theyare fiscal inquiries; the royal revenue is the chief end inview. The jurors are to swear as to what profits have fallento the crown, as to escheats, forfeitures, marriages, wardships,widows, Jews, treasure trove and other sources of income;also as to the misdoings of the sheriff and his bailiffs; alsoas to murders, robberies and so forth, for crime also bringsmoney to the royal exchequer-for instance there are themurder fines to be collected. It is not improbable that ourNorman kings occasionally directed inquisitions of this sort.In Henry the Second's reign, under the Assizes of Clarendon

I 28 Constitu t ionnl Nisto~y PERIODand Northampton, the presentation of crimes by twelve menrepresenting each hundred was made a regular permanent procedure.The twelve sworn hundredors are to present crimes ;the persons whom they accuse are to go to the ordeal; ifthey fail at the ordeal they are to be punished by mutilation.What is more, the Assize of Northampton betrays some mistrustof the efficacy of the ordeal as a means of eliciting thetruth, for even if a person thus accused satisfies the test, andthus has the judgment of God in his favour, he is to abjurethe realm, that is, he is to leave the realm swearing never toreturn. You observe that these twelve sworn hundredors aresworn accusers ; their testimony is not conclusive ; their oathdoes not lead to immediate condemnation; it leads to trial ;it puts the accused on his trial; he must go to the ordeal.In short they are the ancestors of our grand jurors, not ofour petty jurors, and their sworn accusation is an indictment.For the rise of the petty jury we must look elsewhere. Butlet us pause to remark that these measures of Henry theSecond institute a new mode of procedure in criminal cases,they put the indictment by the side of the appeal. ThenceforwardEnglish law has two criminal procedures; there is theappeal-a private accusation brought by the person primarilywronged by the crime, the person, e.g., whose goods have beenstolen, or the nearest kinsman of the murdered man; thenthere is the indictment-the sworn accusation of twelve menwho have sworn to present the crimes committed within theirhundred. These two modes of procedure live side by sideuntil modern times; the appeal of felony was not abolisheduntil 1819; the indictment we still have, though in course oftime its real nature has undergone a great change.(5) And now as to the petty jury or trying jury incriminal cases. We cannot trace this back to any positiveordinance; it makes its way into our procedure almostinsensibly and that too at a comparatively recent time-bywhich I mean that the system of assizes and juries in civilcases was in full swing before it became common that personsaccused of crimes should be tried by the oath of their neighbours.From the Norman Conquest onward the regularmeans of bringing a criminal to justice was the appeal, orI Appeal and Indictment 129private accusation, and this led to trial by battle. Gradually,however, in the reigns of Henry I1 and his sons, we find thatappellees can purchase from the king the privilege of havingquestions tried by an inquest of neighbours. At first thequestions thus tried seem merely to be incidental questionsarising out of the pleadings, as for instance, whether theappellee is a maimed man who need not fight, or is abovethe fighting age. The questions thus tried become in courseof time more substantial and touch the real issue of guilt orinnocence : thus the appellee sets up an alibi and obtains aninquest to prove this ; or again he asserts that the appellor ismoved to the appeal by no honest motive, but by spite andhatred, and obtains an inquest to prove that this is no trueappeal but is the outcome of odium et atya. Lastly, we findthe appellor putting himself on an inquest for the wholequestion of guilt and innocence-ponit se super pntriam et debono et de malo-he puts himself on his country, i.e. on hisneighbourhood for good and for ill. An article of the GreatCharter (the meaning of which has been contested) seems toprovide that thenceforward an appellee is to have a right toput himself upon an inquest without having to purchase thisas a privilege from the king1. By the time when Bractonwrote (circ. 1250) it seems to be law that an appellee has twoalternatives open to him ; he can defend himself by battle orhe can put himself upon his country, occasionally (as e.g. ifthe appellor be beyond the fighting age) the appellee mustbe forced to put himself upon his country.Thus much as to trial by jury in the case of an appeal ;but as already said Henry JI established by the Assizesof Clarendon and Northampton another criminal procedure,namely the indictment. Now under these ordinances theperson indicted went to the ordeal, but as already notedsome distrust of the ordeal was already shown, for even ifthere was supernatural testimony in favour of innocence stillthe accused, si fuerit de pessiwzo tcstimo~iio et publice dif-&matus, had to abjure the realm. Half a century later theordeal went out of use. The Fourth Lateran Council, held inhf. C. c. 36. McKechnie, pp. 417-27.

1 30 Constitutions Z History PERIOD1215, prohibited the clergy from taking part in the ordeal,and thus in effect abolished it, for the ordeal was nothingif not a religious ceremony. We find the council of anEnglish king (Henry the Third had just become king andwas yet a boy) at once accepting the abolition as an accomplishedfact and making provision for the new state of affairs.It seems to become law that a person indicted by the twelvehundredors must submit to be tried by an inquest of neighboursor else must remain in gaol. I think that during the first halfof the thirteenth century some at least of the king's judgesheld that, even if the accused would not voluntarily put himselfupon the oath of his neighbours, nevertheless he could be tried,an inquest could be sworn, and, if it made against him, he couldbe sentenced and punished. It seems to me that this wasBracton's opinion, but that he did not care to express himselfvery plainly. Doubtless there was a very strong feeling thatto try a man by a jury, when he had not submitted to be sotried, was thoroughly unjust. We moderns, especially if wecome to the subject with the too common belief that trial byjury is a process of popular customary origin of immemorialantiquity, the birthright of Englishmen and so forth, mustfind it hard to realize this sentiment, but, if we fail to do this, animportant tract of legal history will be for us a stupid blank.The mere oaths of twelve sworn witnesses (remember thatthe jurors of the thirteenth century are witnesses) are notenough to fix a man with guilt, unless indeed he has voluntarilysubmitted his fate to this test; he ought to be allowed todemonstrate his innocence by supernatural means, by somesuch process as the ordeal or the judicial combat ; God maybe for him, though his neighbours be against him. It isinteresting to find that this notion was not confined toEngland ; Brunner has shown that it crops up in Normandyand in other parts of France-a man is not to be condemnedon the evidence of his neighbours unless he has put himselfupon their oath'. I think, as already said, that some of thejudges of Henry 111's reign had risen above this notion andsent to trial by jury men who distinctly and emphaticallyBrunner, Schwurgerirhte, pp. 469-77.I Exte~tsiozz of the Jury System I 3 Irefused trial ; but before the end of the century it had becomeestablished that the indicted person could not be sent totrial unless he put himself upon his country. He could notbe tried, but he could be tortured into saying the requisitewords; superstitions look odd when they have ceased to beour own superstitions : it became law that an indicted personwho, when asked how he would be tried, stood mute of malice,that is, refused to answer ' By God and my country,' might bepressed and starved to death. I need not give the details ofthis, the peifze forte EL dz~re, but one should think of it wheneverone hears talk of trial by jury as of an obviously just institution.Our ancestors did not think so.At the end of Edward 1's reign, the moment at which wehave placed ourselves, the situation therefore is this. In allcivil actions, trial by jury-i.e. by a body of neighbour witnesses-has become the usual mode of trial, though still in certaincases, not very common, the defendant can have recourse tocompurgation or to trial by battle. As to criminal casesaperson appealed may if he pleases put himself upon a juryinstead of fighting; jurors also are sworn in to indict criminals,the person thus indicted must consent to be tried by anotherjury ; if he will not consent, he is pressed or starved to death.All jurors, however, are as yet witnesses, or sworn accusers;the process which turns them into judges of fact, judges offact testified by others, by witnesses produced and examinedin their presence, has hardly yet begun. The fact that jurorsare regarded as witnesses is brought out by this; in manycases, and their number is increasing, the person against whomthe jurors have given a verdict may take proceedings againstthe jurors for perjury : these proceedings are called an attaint;the verdict of the twelve jurors is brought before a jury oftwenty-four, and if these twenty-four find that the verdict wasfalse, it is set aside and the twelve perjured jurors are heavilypunished. Also we may remark that as yet it is hardly wellestablished that the jurors must give an unanimous verdict ;in old times the verdict of a majority has been accepted.We have now taken account of the doctrines whereby theroyal jurisdiction had extended itself, and of the new institution,regale be~zeficiurn, which had made royal justice preferable to

Constitutional Historyall other justice. We may now loolc at the courts as theystand in Edward's reign.(a) The old local courts still exist; as a political assemblythe county court is still of first-rate importance, it is this thatis represented in parliament by the knights of the shire ; butas a court of law it has lost much of its importance. Almostall civil causes of any great importance can now be begun inthe king's court, where there can be trial by jury. Nor is thisall ; a statute has lately been passed, the Statute of Gloucester(1278), which has been construed to mean that no action formore than 40 shillings can be brought in these local courts1.The statute does not say this; what it says is very different,viz. that no action for less than 40 shillings is to be broughtbefore the king's justice-apparently it was felt that thecentralization of justice had already gone too far; it wasa hardship for men to be brought to Westminster for lessthan 40 shillings. However, the king's justices seem to haveat once construed this to imply that suits for more than40 shillings were not to be brought in the local courts. Thusthe competence of those courts was now restricted by a barrier,which grew narrower and narrower as the value of 40shillings became less and less. As to criminal proceedingsthe county court had lost its jurisdiction. The first steps inappeals of felony were taken in the local courts, but thosecourts could try no cases in which there was talk of a breachof the king's peace. Presentments also and indictments weretaken in the local courts; but they could not try the indicted.Quite petty offences could be punished however by pecuniaryamercements in the hundred court and the courts leet, thatis, hundred courts which had fallen into private hands; buteven in these cases the penal jurisdiction was now deemed toemanate from the king, and was exercised by his sheriff or bysome lord claiming under royal grant. The private penaljurisdictions Edward had tried to suppress by demandingthat all those who claimed them should prove a title derivedfrom the crown-they seldom extended beyond the hangingof a thief caught in the act with the stolen goods upon him.See, for a fuller account of the decline of manorial jurisdiction, Maitland,Select Pleas of AWano~iat Couvls (Selden Society), Introduction.End of the Justiciar(6) The manorial courts as regards freehold had perhapsnot lost much in theory-it was still the rule that a proprietaryaction for land freehold of the manor should be begun in themanor court, but this rule, though sanctioned by Magna Carta,was easily and successfully evaded. My impression is thatbefore the end of the thirteenth century it was a very rarething for an action concerning freehold to be begun, tried, andended in a manor court. But the king's courts had not yetundertaken to protect the tenant in villeinage against his lordor to regard him as having any right in his land. Disputesas to lands holden by villein services were still heard anddetermined by the customary court of the manor, and in suchcourts alienations were effected, the old tenant surrendering theland to the lord who admitted the new tenant.(c) The king's court, as we have seen, has by Edward'stime split itself up into three different courts of law, the King'sBench, the Court of Common Pleas and the Exchequer. Thestages in this process can be dated, but we must not go intodetails. The last stage is reached when the office of chiefjusticiar was extinguished. This we may say happens at theend of Henry 111's reign. In 1232 Henry dismissed Hubertde Burgh, who is the last chief justiciar in the sense of beingthe king's first minister and lieutenant-general. Henry wasthen under the influence of the foreign party, and he appointedone Stephen Segrave to the justiciarship: but two years afterwardsthe barons revolted against the foreigners and Segravewas dismissed. Henry then tried for many years to rule withouta justiciar, without ministers. For a short time near theend of the reign there was again a justiciar, but in I 268, shortlybefore Henry's death, the office became empty and was neveragain filled up. Thenceforth each of the three courts had itschief justice-there was the chief justice of the King's Bench,the chief justice of the Common Pleas, the chief Baron ofthe Exchequer. The extinction of the chief justiciarship isimportant in many ways. It marks a stage in the separationof judicial from governmental functions: the head of thecourt of justice is no longer the prime minister. This leadsto the rise of the chancellor; Edward's first minister, probablythe chief adviser in his legislative scheme, is his chancellor,

CoPzstitutionaZ HistoryBurnell. But from this time forward we may say there is abody of judges who are expected to be non-political, who areto hold the balance of justice evenly not merely betweensubject and subject, but also when the king himself is concerned.Still we must not, for a long time yet, think of thejudges as enjoying any great degree of independence ; theyare still the king's servants; they hold their offices for centuriesto come during the king's good pleasure, and occasions onwhich the royal will is allowed to interfere with the course ofroyal justice are but too frequent. Of each of these courtsa word :-(i) The King's Bench is theoretically a court held beforethe king himself, and for a long time yet, its justices journeyabout with the king. It is very clear that both John andHenry I11 did justice in person. The th7ory of the time sawno harm in this. Bracton explains that all justice flows fromthe king; it is merely because he has not strength enough andtime enough that he delegates some of his powers to justices.It was but gradually that the king abandoned the practiceof sitting in court; but in the fourteenth century it had,I think, become uncommon for him to do so. Still to the veryend of its career in 1875 the King's Bench was theoretically acourt held coram ipso domi~zo Rege; any suitor ordered tocome before it, was bidden to appear coram nobis ubicunqz~efuerimus in Anglia. As to its functions :-it was in the firstplace the central court for pleas of the crown. Criminal caseshad to be begun in the counties in which the crime was committed,before those itinerant justices of whom hereafter ; butthe King's Bench had criminal jurisdiction as a court of firstinstance over the county in which it sat. But further it had ageneral superintendence over criminal justice ; it could orderthat any criminal case should be removed from the courts ofthe itinerant judges and brought before it. Secondly, it had alarge power of superintendence over all royal officers, sheriffs,and the like-would entertain complaints against them andbid them do their duties. Thirdly, it had a large civil jurisdiction;it could entertain any civil action in which thedefendant was charged with a breach of the king's peaceandas I have already said, this idea of the king's peaceCom~~zo~ Pleas and Exchequer I 35had been so enormously extended that any unlawful use offorce, however small, could be regarded as a breach of theking's peace and could be brought before the King's Bench.Not content with this it proceeded by means of fictions tosteal business from the Common Pleas. A - reat deal of ourlegal history is to be explained by the fact that for centuriesthe judges were paid by fees ; more businecs therefor? meantmore money, and they had a keen interest in attracting casesto their courts.(ii) The Court of Common Pleas was the central courtfor all cases between subject and subject. The charter providedthat such cases should not follow the king, bi ' should be heardin some certain place; as a matter of fact, this ,ourt was seldomremoved from Westminster. It had ? concurrent jurisdictionwith the King's Ber,:h in actions of tresp3cs in which mentionwas made of the king's peace, while all nthnr civil casesbelonged of right to it. In course of tirr- however, both theKing's Bench and the Exchequer contrived to rob it of agreat deal of work.(iii) The Exchequer of Edward's reign was as yet a somewhatambiguous institution-both a CourL of law and anadministrative bureau. In its former capacity it heard suitsrelating to the royal revenue. In its latter it collected therevenue and paid it out. Gradually these functions wereseparated. The fiscal work, the receipt and collection ofrevenue, was under the control of the lord treasurer, assistedby the chancellor of the exchequer, while a chief baron andthree or four other barons heard and determined the litigiousproceedings, and in course of time stole a great deal of workfrom the court of common pleas. The separation in thisfinaqcial department of the administrative from the judicialwork took, however, a long time :-the modern treasury is anoffshoot of the ancient exchequer, and down to 1875 thechancellor of the exchequer was entitled to sit as a judgealong with the barons, and just for form's sake a newlyappointed chancellor of the exchequer used to sit there andhear a case or two. The barons of the exchequer of Edward'sday, and even of a much later time, were not as a ruleprofessional lawyers.

Constitzztional HistorySuch were what came to be known as the three superiorcourts of common law:-this phrase 'of common law' has notas yet acquired one part of the meaning which it had in latertimes: for the present we hear nothing of any court of 'equity.'The evolution of these definitely judicial bodies did not,however, exhaust the fount of royal justice. If all othercourts failed the king might still do justice in his council orin his parliament. The king's court of the Norman reignshad been, we have seen, in theory a court of prelates andbarons ; it is not until we have come to the days of Henry I1that we find a smaller group of professional judges doing theordinary and rapidly increasing work of the curia Regis. Wehave seen also that during the thirteenth century there growsup a contrast between the king's permanent council (conciliumRegis) and the great council of the nation (commune conciliumregni). In either of these assemblies the king can do justice,and during the reign of Edward I the machinery of governmentworks so easily, and there is (except at the one greatcrisis of I 297) so little opposition to the king, that men are notvery careful to distinguish between these two bodies. Wehave noticed this as regards legislation ; the contrast betweenstatute and ordinance is not emphasized; of some of Edward'slaws it is hard to say whether they proceed from the king inparliament or from the king in council. So with judicature ;the errors of all inferior courts may be brought in the lastresort for correction before the king in parliament or before theking in council. Looking a little forward we see that this work,the work of an ultimate court of error, becomes definitely thework of parliament, but is transacted only by that part of theparliament which is of ancient date. The representatives ofthe commons, though they make good their claim to share inall legislation, never take part in this judicial work. Thusthe House of Lords, the assembly of prelates and barons,becomes the ultimate court of error-still in name and theorythe jurisdiction is that of the king in parliament. On the otherhand jurisdiction is also claimed for the king in councilalong and stormy history lies before this claim, the historyof the Star Chamber, the history of the Court of Chancery;but for the present under Edward's just and steady rule allJudicia Z Circuitsworks well-there is no great need to distinguish between thepermanent group of advisers and the occasional assembly ofprelates and magnates-the one may be treated as a standingcommittee of the other.(d) It remains to speak of the visitatorial courts :-From an early time a great deal of the work of royaljustice is done not by the central tribunal but by itinerantjustices, sent out by royal commission to hear cases in thevarious counties. We hear of such judges in the reign ofHenry I ; their visitations become normal and systematicunder the rule of Henry 11. The king commissions justicesto transact this and that judicial business in the variouscounties of England. These commissions take various formsmore or less comprehensive. First, justices may be sent outad omnia placita, that is, to entertain all manner of pleasbelonging to the county in question. Justices acting underthis comprehensive commission are known pre-eminently asjustices in eyre-their journey is an iter or eyre. When sucha commission is issued, then all the business belonging to thecounty in question which is pending in the king's court isadjourned out of that court into the eyre-so that if theparties to a suit would otherwise have been bound to appearbefore the Bench at Westminster and take some step in theaction, they will now be bound to appear before the justicesin eyre. Further, these justices are armed with lists of inquirieswhich they are to lay before jurors representing the varioushundreds of the county and to which such jurors must returnanswer on oath. Such cnpitula itineris, articles of the eyre,relate chiefly to crimes and to royal rights-the criminal andfinancial inquiries seem curiously mixed up together-for intruth crimes are pleas of the crown, and a source of royalrevenue. So the justices in eyre inquire of murders, robberiesand other felonies, also of escheats, wardships, marriages andthe like, also (and this must have been important business)of the illegal profits of sheriffs and other royal officers. Thewhole of the county is summoned to meet the justices. Infact the justices hold a very solemn meeting of the countycourt and do royal justice therein. Now eyres of this kind weremade throughout the thirteenth century. It is said that they

1 38 Cotzstitzdionnl HistoryPERIODwere usually made once in every seven years ; but certainlythis period was not strictly observed ; the king could order aneyre when and where he pleased. An eyre seems to havebeen regarded as a sore burden on the county, the attendanceof all freeholders was required, and the justices exercised largepowers of fining and amercing the county, hundreds, townshipsand individuals for neglect of police duties, small infringementsof royal rights and other minor misdoings. Complaints ofthe frequency of these eyres were often made. They seemto have gone out of use in the time of Edward 111. ASmachinery for collecting revenue they were becoming unnecessary:the king was beginning to depend more andmore on taxes granted by parliament, less and less on theprofits of jurisdiction and the income derived from his feudalrights, escheats, wardships and so forth. Justice could bedone in the counties under less comprehensive commissions,commissions of a purely judicial kind.By this time, besides the commission for a general eyrethere were three other commissions in use-commissionswhich are still in use at the present day. Of these a fewwords must be said.(I) The Corn! 1: :ion of Assize. We have seen thatHenry I1 instituted certain actions for the protection ofpossession, the three possessory assizes of Novel Disseisin,Mort D'ancestor and Darrein Presentment. Justices were sentout to take these assizes, that is, to hear and determine thesepossessory actions. Evidently circuits under such a commission,unlike the general eyres, were popular. John wasobliged to promise in the charter of 1215 that justices for thispurpose should be sent four times a year-in the charter of1217 this was changed to once a year. This promise seemsto have been fairly well kept. At first it was the practice tocommission as justices some four knights of the shire; butgradually during Henry 111's reign this work falls moreand more into the hands of the professional judges of theroyal court. It becomes the practice to commission one ofthem and such knights of the county as he shall associatewith himself. The opinion gains ground that such work cannotproperly be left to amateurs, and divers statutes from theI Nisi Pyizts I39end of the thirteenth and from the fourteenth century providethat one of the justices hearing the assize must be a judge ofthe King's Bench or Common Pleas or a serjeant at law.Then in 1285 the Statute of Westminster I1 threw a greatdeal of new work upon these justices of assize. By this timetrial by jury had become the common mode of trying actionsother than the assizes. When an action in one of the courts atWestminster was ready for trial, when, that is, the parties bytheir pleadings had raised some issue of fact, it had been thepractice to summon to Westminster a jury from the county towhich the case belonged-thus if it was a Cornish case thesheriff of Cornwall would be directed to send jurors fromCornwall. It is to me very surprising that Englishmen shouldso long have borne this heavy burden. But so it was; we stillmay read on the contemporary rolls how jurors from the remotestcorners of England journeyed up to Westminster to givetheir verdicts. But in 1285 it was ordained that the trial of suchactions should, at least as a general rule, take place beforethe justices of assize. The court then in which the action wasdepending, instead of bidding the sheriff send Cornishmen toWestminster, would tell him to have the jurors at Westminsteron a certain day, unless before that day (nisiprius) justices ofassize should come into Cornwall. The same statute (West. 11,I 3 Edw. I, c. 30) directed that assizes should be taken thrice ayear, but at sorne time or another it became the practice tosend them only twice a year-only once a year into the fournorthern counties. As a matter of course, then, the justices ofassize would come round before the day named in the writ, andthen the case would be tried at ?zisipyizrs. Now it is well tounderstand that though as a matter of fact the justice of assizesitting to try a case at ~zisipyius was usually one of the judgesof one of the three courts of common law, he sat there notas such a judge but merely as a royal commissioner sent outfor this one occasion to take the assizes of a particular county.For instance the queen (I am speaking of what happenedtwelve years ago) might commission a judge of the CommonPleas to take the Cambridgeshire assizes1. He would come' i.e. before the Judicature Act of 1875 which amalgamated the three courts.

I 40 Constitutional k?istory PERIODto Cambridge, and under the Statute of Westminster hewould try with a jury all the Cambridgeshire actions whichwere ready for trial, no matter in which of the three courtsthey were depending. The court he held would not be thecourt of Common Pleas nor the King's Bench nor the Exchequer.He would be sitting as a royal commissioner,empowered to try these cases. His one business would be topreside at the trial. In general, though to this there weresome statutory exceptions, he could not give judgment. Theaction was an action pending in one of the central courts,the Westminster courts, and it was for that court to givejudgment.(2) The Commission of Gaol Delivery. Even while eyresnd omlzia placita were still in use we find commissions of gaoldelivery. These can be traced to the very beginning of thethirteenth century. The king by such a commission directedcertain justices to deliver a certain gaol ; that is to say, to tryall the prisoners who were in that gaol. This must in timespast have been comparatively light work, for accused personswere seldom imprisoned unless they were charged with homicide,and this commission did not, I think, authorize thetaking of indictments against those who were not in gaol.Such commissions are still issued in very much their old form-they are directed to the judges of the Westminster courts,the serjeants, queen's counsel and circuit officers, and empowerthem or any two of them (of whom one must be a judge,serjeant or queen's counsel) to deliver the gaol.(3) General Commissions of Oyer and Terminer are not,I think, so ancient; they come into use as the eyres aredropped. They are directed to the same persons as thecommissions of gaol delivery, and usually, I believe, to somegreat noblemen, landowners of the district. They authorizethese commissioners to hear and determine all felonies andother crimes in the county. According to the interpretationput upon these two commissions in modern times there is butlittle difference between them ; they authorize almost exactlythe same things; but it seems to me clear that in old timesthe Oyer and Terminer was a far more comprehensive authoritythan the Gaol Delivery, since the latter did not empower theI Injuence of the Circuits 141commissioners to receive indictments against those who werenot in gaol.Now the cases which came before justices sitting underthese two last-mentioned commissions were criminal cases,pleas of the crown, and they were not, you should understand,cases depending in courts at Westminster like the civil casesheard at nisiprius. The whole procedure-indictment, pleading,trial-took place before the commissioners, and they couldpass judgment and sentence-and thus completely dispose ofthe whole case.The general result of this system of commissions was thata great deal of royal justice was done not by the permanentcentral courts, but iri the counties, by commissioners sent outjust for that occasion. They could completely dispose of thecriminal business of the county, and could preside over thetrial by jury of civil actions depending in the central courts.In course of time more and more of this circuit work wasdone by the judges of the king's permanent courts. Thedetails of the system, which was still in working order buta few years ago, you will have to learn at some future time:the importance of it in the history of our law has beenimmense ; owing to this system is it that we have never hadpowerful local tribunals and what follows from such tribunals,a variety of provincial laws; and again it was under thediscipline of the eyres that the counties and boroughs learntthe first rudiments of representative government.F. Retrospect of Feudalzsm.Before quitting the first of our historic periods it will bewell for us to take a brief review of what we call feudalisminthe first place to come to some understanding about themeaning of the word, and then to see how far England wasever subject to what can properly be called a feudal system.We shall thus have occasion to speak of the growth of thatsystem of land law which hitherto we have considered merelyas an existing fact.And first we will observe that in this country any talk of afeudal system is a comparatively new thing : I should say that'

we do not hear of a feudal system until long after feudalismhas ceased to exist. From the end of the seventeenth centuryonwards our English law grew up in wonderful isolation ; itbecame very purely English and insular. Our lawyers seemto have known little and cared nothing about the law offoreign countries, nothing about Roman jurisprudence. TheirEnglish authorities were all sufficient for them, and neitherour parliaments nor our courts were subjected to any foreigninfluence. Coke in his voluminous works has summed up forus the law of the later Middle Ages, but in all his books, unlessI am mistaken, there is no word about the feudal system. If,we may say, he expounds that system in full detail so far asthat system was English, he is quite unconscious that he isdoing anything of the kind ; he has no thought of a systemcommon to the nations of Europe, he is speaking of ourinsular law. No, for 'a feudal system' we must turn fromCoke to a contemporary of his, that learned and laboriousantiquary, Sir Henry Spelman. Coke was born in 1552 anddied in 1633 ; Spelman was born in I 562 and died in 1641 :so they were just contemporaries. Now were an examiner toask who introduced the feudal system into England? one verygood answer, if properly explained, would be Henry Spelman,and if there followed the question, what was the feudal system?a good answer to that would be, an early essay in comparativejurisprudence. Spelman reading continental books sawthat English law, for all its insularity, was a member of agreat European family, a family between all the members ofwhich there are strong family likenesses. This was forEnglishmen a grand and a striking discovery; much thathad seemed quite arbitrary in their old laws, now seemedexplicable. They learned of feudal law as of a medieval ]usgentium, a system common to all the nations of the West,The new learning was propagated among English lawyers bySir Martin Wright; it was popularized and made orthodoxby Blackstone in his easy attractive manner. If my examinerwent on with his questions and asked me, when did the feudalsystem attain its most perfect development ? I should answer,about the middle of the last century. It was then, I shouldadd, that the notion of one grand idea and a few simpleprincipies underlying the mass of medieval law, English andcontinental, was firmly grasped and used as a means ofexplaining all that seemed to need explanation in the oldEnglish law. Now this was an important step-this connectingof English with foreign law, this endeavour to findsome general intelligible principles running through theterrible tangle of our old books. Most undoubtedly therewas much in our old law which could be explained only byreference to ideas which had found a completer developmentbeyond seas, and to Blackstone and to Wright, and above allto Spelman, we owe a heavy debt. But since Blackstone'sday we have learned and unlearned many things about theMiddle Ages. In particular we have learnt to see vastdifferences as well as striking resemblances, to distinguishcountries and to distinguish times. If now we speak of thefeudal system, it should be with a full understanding that thefeudalism of France differs radically from the feudalism ofEngland, that the feudalism of the thirteenth is very differentfrom that of the eleventh century. The phrase has thusbecome for us so large and vague that it is quite possible tomaintain that of all countries England was the most, or forthe matter of that the least, feudalized ; that William theConqueror introduced, or for the matter of that suppressed,the feudal system.What do we mean by feudalism? Some such answer asthe followillg is the best that I can give-A state of societyin which the main social bond is the relation between lordand man, a relation implying on the lord's part protectionand defence; on the man's part protection, service andreverence, the service including service in arms. Thispersonal relation is inseparably involved in a proprietaryrelation, the tenure of land-the man holds land of the lord,the man's service is a burden on the land, the lord has importantrights in the land, and (we may say) the full ownershipof the land is split up between man and lord. The lordhas jurisdiction over his men, holds courts for them, to whichthey owe suit. Jurisdiction is regarded as property, as aprivate right which the lord has over his land. The nationalorganization is a system of these relationships: at the head

Co~stitzttionn Z Historythere stands the king as lord of all, below him are hisimmediate vassals, or tenants in chief, who again are lords oftenants, who again may be lords of tenants, and so on, downto the lowest possessor of land. Lastly, as every other courtconsists of the lord's tenants, so the king's court consists ofhis tenants in chief, and so far as there is any constitutionalcontrol over the king it is exercised by the body of thesetenants.That seenis our idea of a feudal state. It is vague, it canonly be described in very abstract terms ; the concrete actualrealities to which it answers, the Germany, France, Englandof different centuries may differ from each other very widely.A state which has these characteristics may be a powerfulcompact centralized kingdom; it may be hardly more thana loose confederation of principalities, a practical denial ofnational unity.Now towards such an organization English society hadbeen making progress for centuries before the NormanConquest-and, as it seems, with an ever increasing velocity.The general nature of the process I shall describe in thewords of Stubbs.' The general tendency of the movement may be describedas a movement from the personal to the territorial organization,from a state of things in which personal freedom andpolitical right were the leading ideas, to one in which personalfreedom ahd political right had become so much bound upwith the relations created by the possession of land, as to beactually subservient to it .... The main steps are apparent.In the primitive German constitution the free man of pureblood is the fully qualified political unit; the king is the kingof the race; the host is the people in arms; the peace is thenational peace; the courts are the people in council ; the landis the property of the race, and the free man has a right to hisshare. In the next stage the possession of land has becomethe badge of freedom ; the free man is fully free because hepossesses land, he does not possess the land because he isfree; the host is the body of landowners in arms, the courtsare the courts of the landowners. But the personal basis isnot lost sight of: the landless man may still select his lord ;The Economic Asjectthe hide is the provision of the family ; the peace implies themaintenance of rights and duties between man and man ; thefull-free is the equal of the noble in all political respects.In a further stage the land becomes the sacramental tie of allpublic relations, the poor man depends on the rich, not as hischosen lord, but as the owner of the land that he cultivates,the lord of the court to which he does suit and service, theleader whom he is bound to follow to the host; the greatlandowner has his own peace, and administers his own justice1.'If for one moment we trespass outside the bounds of legalhistory, we may, I think, observe that one main cause of thismovement is economic. The distribution of wealth becomesmore and more unequal. Conquest and feuds may havesomething to do with this, but we need not, indeed cannot,ascribe it chiefly to violence. The better the peace is kept,the better the law is administered, the more progress is madetowards free contract and free alienation, the more rapidlywill great inequalities become common. In a time whenthere is little manufacture this will mean that land will beunequally distributed ; land becomes amassed in the hands ofthe rich, and wealth breeds wealth. But the rich do notreally want the land, they want the produce of land. Theywant their lands cultivated. What is more, they are willingto let out their lands on very permanent terms. There is nospeculation, no buying to sell or selling to buy ; to grant outland for ever at a perpetual rent-to receive it on thoseterms is no imprudent bargain-no rise or fall in prices isanticipated. I think it is well to bear this in mind ; for thereseems to me a tendency to lay too much stress on the militaryand political, too little on the economic side of feudalism.When considered it seems not unnatural that a society consistingof landowizers, free and barbarous, should by quitepeaceful causes become transmuted into a society of landlordsand tenants. But if we may look to such abstract considerationsfor the cause, we must look elsewhere for the facts offeudalism.Now that personal relation between lord and man whichis one ingredient of feudalism, is indeed old ; we may see itl Cotzstitzrtiotzal History, vol. I, 5 69.

Constitutional Historyin the first page of the history of our race. It can be tracedto the relation between the German pri~lceps and his comitesdescribed by Tacitus. Attached to the chieftain by the closestties is a body of warlike companions-in many cases the sonsof nobles, ambitious of renown : he provides their equipment,entertains them at his board. In war they fight for him, atonce his defenders and the rivals of his prowess. They arebound to protect him, perhaps they even swear to do so.The comes is a dependent, but such dependence is glorious ;such service is preferable to the most perfect freedom. Itwas under leaders surrounded by such bands of comites thatEngland was conquered by the German tribes. The comesof Tacitus may be recognized in thegesith of the Anglo-Saxonlaws, a name which gradually gives way to that of thegn, aword which to start with means simply servant. But at firstwe cannot call this a feudal institution; it seems utterly unconnectedwith any tenure of land. The comes is not a landowneror land-holder, he is an inmate of his leader's household.But in England the thegn does come to be a landowner.The folk-land, the national land not yet appropriated, seemsregarded as the natural fund out of which rewards may beprovided for those who in war or otherwise have deservedwell of the state1. The king with the counsel and consentof his wise men confers land on his distinguished followers.In England thegnage tends to become territorial. It seemsexpected that a thegn will naturally be a large landowner.The process goes further-the large landowner is worthyof thegn right; he who has five hides of land and certainother rights which seem to be rights of jurisdiction overhis dependents is entitled to be deemed a thegn, and soreceives certain privileges such as an increased wergild, oran increased value for his oath. Then again from the beginning,the thegn is the warrior; all free men are boundto fight; the army is the nation in arms ; but the thegnis specially bound to fight-bound to fight for his leader.As then the thegn becomes a large landowner, and as thelarge landowner as such comes to be regarded as worthySee p. 57.of the privileges of the thegnage, so the special duty offighting, and fighting for the king, comes to be a duty incumbenton the large landowners. We know too that the folkland,the unappropriated land which according to the olderidea had belonged to the nation, had been becoming moreand more the king's demesne land in fact, if not in theory.Stubbs notices that from Alfred's time onwards the clausein the deeds granting this folk-land, which expresses thecounsel and consent of the witan, becomes rarer though itnever disappears altogether. The wise men rather witness thegrant than authorize it. After the Conquest, all this folk-landbecame simply terra Regis, the king's demesne; but large asthe change may seem to us, very possibly it was a changerather in terminology than in anything else; it was a recognitionof what had well-nigh become an accomplished fact.The thegn then who has received a grant of such land andwho is bound to military service-it takes but a small changeof ideas, a change in the point of view from which the factsare seen, to regard him as holding land of the king by militaryservice. Exactly wherein consisted the special military obligationof the thegn, we do not well know. According to the oldorder of ideas, every man was bound to serve in the nationalarmy, the king's thegns were bound to fight round him and forhim. As the thegnage became connected with the possessionof land-so that the owner of five hides was worthy of thegnright-so,it would seem, a special obligation to serve andfind soldiers was laid on the great landowners and in someway, which we cannot now precisely determine, was proportionedto their holdings. But to the last, to the day ofthe Conquest, the old national army could be called out, andit is very necessary to remember that the Conquest did notput an end to this; the old national army exists alongside ofthe feudal army.But it is not only the king who has thegns-great menmay have them: indeed it seems that a thegn may havelesser thegns dependent on him-just as in after-days theIcing's tenant in capite might have tenants holding of himby knight's service ; still the idea of tenure is not the essenceof thegnship. The history of the thegnship is brought out

Constitutions Z Historyby laws concerning heriots. Now in its origin the heriot isthe equipment of arms which the prince@ has provided forthe comes ; on the death of the latter, it must be given back-the word just means equipment for the army. The thegnceases to be a member of the household, becomes a landownerand provides his own arms; but still on his deaththe heriot is rendered. It now takes the form of arms andmoney, due to the king on the thegn's death. Thus in thelaws of Canute, on the death of a king's thegn four horses-two saddled, two unsaddled-two swords, four spears, asmany shields, a helm, breastplate and 50 mancuses of goldare due1. This is important under the Norman kings : theseheriots come to be regarded as reliefs, sums paid by the heiron his taking up the land which had been his ancestor's, aburden of tenure. The payment may remain the same, themode of regarding it is different. Thus the way of feudalismis prepared.This tie of man to lord was regarded as a tie of the mostsacred kind. While many offences which we should thinkvery grave can still be compounded with money, treasonagainst the lord, be he the king or another lord, is a capitalcrime. This is laid down in the laws of Alfred, and to theselaws there is a curious preface which shows the strength ofthe feeling. The king explains that after the nations hadaccepted the Christian faith, it was ordained by the wisemen (spiritual and lay) that for almost every first offence amoney payment might be accepted, save for treason to thelord for which no mercy should be shown, since God Almightyshowed none to those who despised him, and Christ, God'sson, adjudged none to those who sold him, and commandedthat a lord should be loved as one's self. The crime of Judasis the crime of one who betrayed his lord2.This relation of man and lord we find in all parts of thesocial structure. To start with it is a relation into whichmen enter voluntarily. Then, however, we find the legislatorsrequiring that men shall have lords. This rule islaid down is the laws of Athelstan (925-940)-every landless' Select Charters, p. 74, Liebermann I, pp. 357-9.Select Charters, p. 62, Liebermann I, pp. 45-6.I Commendation I49man must have a lord: if he has not got one, one mustbe found for him by his kindred1. This we may regardas a police measure. The law has no hold on the landlessman ; too often he can break the law and laugh at it ; thereis nothing of his that you can take from him; escape fromjustice is easy; he must have a lord who will be bound toproduce him in court should he be wanted. Thus positivelegislation extends the relation of dependence; it is requiredthat men must either have land or have lords. The landlessman may still be fully free, may have political rights, buthe is dependent. The change has begun which makes freeholding,and not personal freedom, the qualification for politicalrights. The landless man is represented in the courtsby his lord ; his lord begins to answer for him, he is losinghis right to attend on his own behalf, to sit there as judgeand declare the law.Probably he finds this very convenient. Attendance atthe courts is a sore burden for the poorer men ; they wouldgo there to little purpose, merely to see things settled forthem by the richer folk ; while as to their private rights thelord will look after these, for they are much implicated withhis own rights. We can see that it must have been convenientto have a lord; for what the landless are bound todo by law, the smaller landowners do of their own free will ;they commend themselves to lords. We learn from Domesdaythat in some parts of England this practice of commendingoneself had become common, especially in the eastern counties.The smaller landowners had placed themselves in a relationof dependence on superior lords. What exactly was impliedby this we do not know-and very possibly commendationmeant different things in different cases-sometimes, it wouldseem, the dependent was still able to transfer himself and hisland from one lord to another; sometimes being personallyquite free, he could leave his lord but then must leave hisland, and in such cases it is a delicate and a verbal questionwhether the land is his land or has become his lord's. Nolegislation had turned the smaller owners into tenants ofother men's lands or even compelled them to have lords-Select Charters, p. 66, Liebermann I, p. 170.

Constitutional Historythe change had been brought about by the private acts ofindividuals and the result, as sketched for us by modernwriters, is intricate and confused.But very often indeed, something which we cannot butcall a tenure of land, a holding by one man of another, musthave been created in a simpler fashion. By means of grantsof folk-land territories were being amassed in the hands ofgreat men and religious houses1. These again granted outtheir land to cultivators. Generally such grants were of apermanent kind: grants to a man and his heirs, or grantsto a man and a certain specified number of successive heirsin return for labour services, ploughings and reapings of thelord's own demesne lands, or rents payable in money or inkind. We do not find grants or leases for years-I believethat among all the Anglo-Saxon charters, there is but onespecimen of such a bargain. Permanence is desired on bothsides-there is no speculating for a rise or fall of prices or ofrents. And here we have something very like the estate in feesimple of later law-the feudal division of complete ownershipbetween lord and tenant. The cultivator has perhapsunder the terms of the grant an estate that is to endure forever, or at least so long as he has heirs ; but the services areburdens on the land-very possibly if his heirs fail the landwill again become the land of the giver, very possibly if theservices fall into arrear, the giver may resume the land. Weknow very little about all this-for the titles of the smallerpeople, the cultivators of the land, were seldom evidenced bywritten instruments. But it is very probable that before theNorman Conquest, a large part of England was holden practicallyon the terms of that socage tenure that we find existingat a later day-the possessor of the land being bound toperform services more or less onerous in return for the land,to plough the lord's own land, to pay rent in money or inkind. All that seems wanting to turn such a possession intoa tenure by one man of another is just the technical termi-Maitland would possibly have rewritten this sentence somewhat as follows :'By means of royal and other books (or charters) superiorities over land werebeing conferred upon religious houses and great men.' Domesday Book andBcyond, pp. 226-58, 293-318.Private jurisdictionnology-and to a uniform technical terminology Anglo-Saxonland law had not yet arrived. So far as we can now see, ithad no theory of tenure.We approach here a difficult subject-perhaps the mostdifficult in the history of English law-namely, the historyof villeinage, the history of that servile land-holding whichis brought to our notice in the books of the twelfth andthirteenth centuries. It seems highly probable that at thedate of the Norman Conquest there was a large mass ofunfree tenants cultivating lands on much the same terms asthose which constitute the villeinage of later days. Slavesthere most certainly were throughout the Anglo-Saxon period-the existence of a class of persons half-servile, half-free, isa more disputable point.Another element of feudalism is plainly visible. Forsome time before the Norman Conquest-how long is adebated question-jurisdiction, the right to hold courts, hadbeen passing into private hands. The doctrine had longbeen gaining ground that justice was the king's, that hecould grant it to others, could grant to them the right ofholding courts. Certain it is that Edward the ConfessorI-ad made such grants on a lavish scale. Our evidencechiefly consists of grants made to churches and religioushouses-ecclesiastical bodies were careful to preserve theirtitle deeds, and so they have come down to us-but therecan be little doubt that similar grants were made to greatlay landowners. England was fast becoming a land ofprivate courts-courts in which the lord did justice amonghis dependents, those dependents being bound to come and sitthere, and help in making of judgments. Nothing, I believe,is more the essence of all that we mean when we talk offeudalism than the private court-a court which can be inheritedand sold along with land. Looking at this we maysay that England was plunging into feudalism, and feudalismof a dangerous kind-for during the Confessor's reign thecentral power was growing weak, the great lords were growingstrong. The facts of feudalism seem to be there-what iswanting is a theory which shall express those facts. Thatcame to us from Normandy.

ConstitutionaZ HistoryThe Conqueror came from a land which had formed partof the territory of the Frankish Empire, and within thatEmpire the process which we have seen at work in Englandhad gone on faster and further. The soil had long beenRoman. The Frankish conquest of Gaul had differed essentiallyfrom the English conquest of Britain. It had beeneffected slowly by a German nation which had becomeChristian during the conquest. A large population of theold inhabitants-Celtic by blood, Roman in language andin law-became subject to Teutonic rulers. In England thesmall landowner was, at least generally, a free Englishman;in Gaul he was a conquered provincial. What is more, incourse of time the Romance tongue prevailed in France overthe German speech of the conquerors, and the customs ofthe Franks were impregnated by Roman law. This Romaninfluence is apparent at once when we compare our old doomswith the still older Lex Salica, the code of the Salian Franks ;the former are written in Anglo-Saxon, the latter is writtenin Latin.Now on the continent the history of feudalism centresround the benefciurn, or, as it came to be called, the feodum.It is this, of course, which has given us the word feudal. Theword feodum does not, I believe, occur before the end of theninth century. It is derived from the German word for cattle,which, like the Roman pecunia derived from peczds, comes tomean money or property in general. It is somewhat curiousthat the two words which English lawyers very frequentlycontrast as quite opposed to each other, the fee and thechattel, should both refer us back to what is perhaps theoldest form of property, namely cattle, for chattel is fromthe low Latin catallurn, cattle. But the beaefciunz was anold institution ; it appears very soon after the German tribesoverrun the Roman Empire. It is a gift of land made bythe king out of his own estate, the grantee coming under aspecial obligation to be faithful-not, it seems, a promise ofdefinite service, but a general promise to be faithful in considerationof the gift. Such grants were freely made by theFrankish kings to their great men. At first, it seems thegrant was made merely for the life of the grantee. Gradually,The Idea of Tenwehowever, the benefice assumed a hereditary character : it wasconsidered that the heir of the dead beneficiary had a claimto a renewal of the benefice. The hereditary ch~racter of thebenefice is already recognized in a capitulary (an ordinance)of 877-two hundred years before the Norman Conquest. Alloffices in the Middle Ages tend to become hereditary-thekingship tends to become, actually becomes, hereditary; oursheriffdoms tend to become hereditary, in a few cases actuallybecome hereditary; the English peers gradually acquire ahereditary right to be called to meet the king in parliament.So also the benefciurn or feodzdrn became hereditary-andyet the heir did not at once step into his ancestor's shoes:he did not hold the fief until he had been invested, put inseisin by the king, and a payment fixed more or less byvarying custom might be required of him on thus relievingor taking up the fallen inheritance. This was the relief.To express the rights thus created, a set of technical termswas developed :-the beneficiary or feudatory holds the landof his lord, the grantor-A tenet terrtzm de B. The fullownership (dominiurn) of the land is as it were broken upbetween A and B; or again, for the feudatory may grantout part of the land to be held of him, it may be broken upbetween A, B, and C, C holding of B and B of A, and soon, ad infiniturn.The genesis of this idea of tenure, of divided ownership,has been and still is very warmly disputed among continentalwriters. I may refer you to the writings of Maine-AncientLnw, chap. viii (last part), and Ear& La.zu and Custom, chap. x.Very possibly some ideas of Roman law helped towards theresult, but the result is a notion which is not Roman-that ofa dominizdrn split up between lord and tenant.Then also jurisdiction passed into private hands-the kinggranted it out along with the land to be held of him. Theidea that jurisdiction is the king's property and may bealienated by him had become current in France earlier than inEngland, the kingship had been stronger, and from the middleof the ninth century onwards such grants became common.This, it is to be remembered, is the time when the greatFrank Empire went to pieces-the central authority became

Constitutions Z Historylittle more than a name-the effective courts were the courtsof the great proprietors. Also, it is to be remembered thatthis is the time when the Northmen subdued Normandy-theNorman duke became the vassal of the king of the French,became so by commendation-Duke Richard of Normandycommended himself to Hugh duke of the French, whose descendantsbecame kings. But the king's power in Normandywas hardly more than nominal. A disciple of Austin wouldprobably say that Normandy was an independent politicalcommunity, though this was not quite the theory of the time.The process of feudalization had gone on within the duchy;the lords of Norman extraction dominated over a people ofanother blood and formed a powerful aristocracy-only thepersonal character, the heavy hand of the dukes, kept togetherthe duchy as a whole.William came from Normandy to claim the English crownwhich, as he alleged, was his by right as the heir whom theConfessor had chosen. It was his own personal right that hecame to seek-no right that Normans had to England, buta right that he, William, had to be king of the English. Theclaim may have been, seemingly was, indefensible, but itsnature should be remembered. To have asserted a title byvictory would have encouraged very dangerous ideas: if theduke had fought and won, had not his earls and barons foughtand won also? No, an air of legality was given to thewhole affair-William succeeded to Edward's position. TheConquest threw into his hands a vast quantity of land. Thosewho fought against him were rebels, and their land was forfeitedby their rebellion ; each new outbreak led to freshconfiscations. His followers had to be rewarded, and theywere rewarded liberally. But there was no general scramble:the new owners step into the places of old owners; a forfeitureand then a grant by the king is the link in the title.Still by means of a quiet assumption feudal tenure becomesuniversal. All land is held of the king.It is, I suppose, of this that an English lawyer first thinkswhen he hears any talk of feudalism. For some centuriespast all the feudalism that has been of importance in Englandhas been merely land law, real property law, a part of privateEfect of the Conquestlaw. Our land law we still say is feudal ; all land is still heldof the king mediately or immediately; this is as true to-dayas it ever was. But the mere fact that it is true to-day showsthat a legal theory of this sort is not the essence of feudalism,for no one would think of calling the England of our daya feudal state. If we examine our notion of feudalism, doesit not seem this, that land law is not private law, that publiclaw is land law, that public and political rights and dutiesof all sorts and kinds are intimately and quite inextricablyblended with rights in land ? Such rights carry with them theright to attend the common council or court of the realm, thecommon council or court of the county; jurisdictions, militaryduties, fiscal burdens are consequences of tenure; the constitutionof parliament, of the law courts, of the army, allseems as it were a sort of appendix to the law of realproperty.Now this theory that land in the last resort is held of theking, becomes the theory of our law at the Norman Conquest.It is assumed in Domesday Book, the outcome of that greatsurvey of which we are now keeping the 800th anniversary:quietly assumed as the basis of the survey. On the otherhand we can say with certainty that before the Conquest thiswas not the theory of English law. Towards such a theoryEnglish law had been tending for a long while past, verypossibly the time was fast approaching when the logic of factswould have generated this idea; the facts, the actual legalrelationships, were such that the wide principle 'all !and heldin the last resort of the king' would not greatly disturb them.Still this principle had not been evolved. It came to us fromabroad ; but it came in the guise of a quiet assumption ; no!aw forced it upon the conquered country; no law was necessary;in Normandy lan-1s were held of the Duke, the Dukeagain held of the king ; of course it was the same in England;no other system was conceivable. The process of confiscationgave the Conqueror abundant opportunity for making thetheory true in fact; the followers whom he rewarded withforfeited lands would of course hold of him; the great Englishlandowners, whose lands were restored to them, would ofcourse hold of him. As to the smaller people, when looked at

I Pecukiayity of English Land Law I 57from the point of view natural to a Norman, they were alreadytenants of the greater people, and when the greater peopleforfeited their rights, there was but a change of lords. Thisassumption was sometimes true enough, perhaps in othercases quite false ; in many cases it would seem but the introductionof a new and simpler terminology; he who formerlywas a landowner personally bound to a lord, became a landtenantholding land of a lord. There was no legislation, andI believe that no chronicler refers to the introduction of thisnew theory. As to the later lawyers, Glanvill and Bracton,they never put it into words. They never state as a noteworthyfact that all land is held of the king ; of cozwse it is.This is very remarkable in Bracton's great treatise. Hisgeneral learning about property he draws from the Romanbooks, and propounds in the language of Roman law. Theultimate tenant of land, the lowest freeholder in the feudalscale, is the owner of the land, he has dominium rei, proprietatem,he is proprietarius ; but of course he holds ofsomeone, tenet de some lord; if he holds of no other, thentenet de domino rege; there is nothing here that deservesexplanation.Now if feudalism consists only in this legal theory oftenure, then I believe we may say that of all Europeancountries England was the most perfectly feudalized. Everyinch of land was brought within it. The great shock of theNorman Conquest rendered the material very plastic; allcould be brought under one idea. If for example we lookat the law of medieval Germany, we find it otherwise ; thereis feudal land and non-feudal land, there are feudal holdersand non-feudal owners side by side. There are two differentbodies of law, Landrecht and Lehnrecht, Common Land Lawand Feudal Law. We Englishmen can hardly translate theseterms ; our Landrecht is all Lehnrecht, all our land law is lawabout land holden by feudal tenure. But we must not forgetto look at both sides of this truth; our Lehnrecht is Landrecht,law not for a particular class of persons holding military fiefs,but the general law of rights in land. This I think of greatimportance ; the wide extension of the feudal idea deprives itof much of its most dangerous meaning; it does not createa caste ; it has to serve for the tenant in socage, the agriculturalclasses as well as for the tenant by knight service.Many things in our legal history are thus explained, forinstance, the growth of primogeniture. In origin it belongs toa military system ; slowly it spread from the military tenantsto the socagers, it ceased to be the mark of a class, it becamecommon law1. How consistently the idea of tenure was carriedthrough the whole land law, and how little that theory mightmean, is best seen when we look at the tenure by frankalmoign.The monastery pays no rent, none of the ordinaryprofits of tenure can accrue to the lord, for his tenant neverdies, never leaves an heir, never commits felony ; but to savethe theory he is still a tenant holding by the service of sayingprayers for the lord.The Norman Conquest then introduces the general theoryof tenure-makes it the theory of the whole land law. Also itdraws tighter the bond which already is beginning to connectmilitary service with the holding of land. Still we must notsuppose that the Conqueror definitely apportioned the quantumof military service to be exacted from his feudatories.'We have,' says Stubbs, 'no light on the point from anyoriginal grant made by the Conqueror to any lay follower;but judging from the grants made to the churches we cannotsuppose it probable that such gifts were made on any expressedcondition, or accepted with a distinct pledge toprovide a certain contingent of knights for the king's service.The obligation of national defence was incumbent as ofold on all landowners, and the customary service of onefully-armed man for each five hides was probably the rateat which the newly endowed follower of the king would beexpected to discharge his duty. The wording of theDoomsday survey does not imply that in this respect thenew military service differed from the old ; the land ismarked out, not into knight's fees, but into hides, and thenumber of knights to be furnished by a particular feudatorywould be ascertained by inquiring the number of hides that heheld, without apportioning the particular acres that were toThis idea is worked out in the Histoy/ OfEl~ghsh Law, vo1. 11, pp. 260-73.

Constitutions Z Historymaintain a particular knight1.' This apportionment seemsrather the result of the process of sub-infeudation. Thegreat landowner whose wide estates oblige him to furnish alarge body of knights parcels out the duty among hisfollowers, definitely providing that A or B shall hold thisparcel of land by the service of one knight or of three knights.The system seems hardly to have been worked into perfectdetail until the feudal array was already losing some ofits importance. The imposition of scutage in the reign ofHenry 11, the commutation of military service for money payment,makes every particular definite ; the obligation can nowbe expressed in terms of pounds, shillings and pence. Thisdistrict constitutes a knight's fee ; this is a fifth of a knight'sfee ; when the scutage is two marks on a knight's fee this landpays two shillings, and so forth. No general plan is imposeda.As regards what are generally called the burdens or incidentsof feudal tenure-here again we ought not to thinkof William the Conqueror bringing over with him a fullydeveloped law. The state of the English law when it becomesmanifest in the pages of Glanvill and Bracton is the resultof i slow process which went on during the eleventh andtwelfth centuries, and which gradually defined the rights oflord and tenant. This process one can trace as regards eachseparate burden-relief, marriage, wardship, aids, scutages, andso forth. The final result we have already sketched. Some ofour ordinary text-books encourage the notion that originallythe English feudatories were merely tenants for life, butthat in course of time, to use the common phrase, 'fiefsbecame hereditary.' Now it is perfectly true that long agosuch a process as this had gone on abroad. The benejciumor feodum as it came to be called, was, to start with, only a lifeestate; but already in the ninth century the claim of theheir to inherit or take up his father's fief had been generallyadmitted. There seems no doubt whatever that whenthe Conqueror gave English land to one of his great followers,1 Constitufionol History, vol. I, 5 96. The number of knights does not seem10 have borne any close relation to the size of the tenant's estate. Round, FcudalEn&and, p. a47 ff.For Maltland's developed views on scutage see History of English Law,vol. I, pp. 166-71, where it is proved that the tenant in chief could not commutehis service.I Reliefs aand Inkerita?zce I59the gift was in terms the gift of an hereditary estate-a gift tothe donee and his heirs. Still doubtless the past history ofthe bene$ciuwz clung about the gift. The heir's claim, thoughan admitted claim, was still rather a claim to be placed in hisancestor's position, than a claim that by mere death andinheritance he was already in that position. He had a rightto have the land, but the land was not as yet quite his. Hemust do homage and swear fealty; what is more, money maybe expected of him if he is to fill the position of his ancestor.There is still something of grace and favour in letting himhold what his father held. We know little of what was thepractice of the Conqueror himself; but it is plain that WilliamRufus would have liked to treat the feudatories as mere lifetenants, to have insisted that the heir must repurchase thefather's land, &en that the new bishop or abbot must repurchasethe land held by his predecessor. He wished, we aretold, to be the heir of every man in England. His demands,however, were clearly regarded as oppressive and illegal.Henr~ I on his succession to the throne found it necessaryto renounce the evil customs of his brother. The coronationcharter in which he did this is one of the main landmarksin the history of English feudalism-even in the history ofEngland. Thus in particular we have this clause: ' If anyof my earls, barons or other tenants shall die, his heir shallnot redeem (redimet, buy back) his land, but shall relieveit (take up the inheritance) by a just and lawful relief.' This,you will see, on the one hand declares in an emphatic waythat fiefs are hereditary, while on the other hand it declaresno less em-phatically that a relief is due. The amount, however,is not fixed. It is to be remembered that something likethe relief had been paid in England before the Norman Conquest-namelythe heriot-and though (as I have already said)the heriot had originally been of a different nature (the returnof the thegn's military equipment to the lord who provides it);it had come to look much like the foreign relief. The theghhad become a landowner; bound by special obligation to servethe king ; on his death arms and money were rendered to theking:-a Norman accustomed to the beneficiary system wouldsee here a relief. It is now very generally supposed that

I 60 Cojgstitutionad History PERIODRanulf Flambard, the minister of William Rufus (of whosedoings the contemporary chroniclers complain very bitterly),had much to do with shaping this part of English feudalism.The just and lawful reliefs of Henry's charter may have beenequivalent to the heriots, a tariff of which is given in the lawsof Canute. But it took a century and more from the coronationof Henry I to reduce the king's claims within any verydefinite bounds. What I have said of reliefs may be said alsoof those extremely onerous burdens which we know as wardshipand marriage. The Coronation Charter of Henry I makeslarge promises about them, and lays down rules which areconsiderably less heavy on the tenants than those whichultimately become the rules of the common law. From theaccession of Henry I to the Magna Carta of 1215 thesematters are very unsettled-the king gets what he can, oftenhe can get much. At length the Great Charter wrung fromJohn sets precise bounds to his rights, though as a matter offact another half century goes by before the charter is verycarefully observed, and even the Great Charter is not in allrespects so favourable to the tenants as is the charter ofHenry I : this in particular is the case as regards wardshipand marriage-the king's rights as ultimately fixed are, to saythe least, very ample.What has been said of the king and his tenants in chiefis true also of the barons and their tenants. Henry I at theopening of his reign was compelled to throw himself on thewhole nation for its support. His charter carefully stipulatesthat his behaviour to his tenants is to be the model for theirbehaviour to their tenants. They are to take no more thana just and lawful relief, and are to be content with such rightsof wardship and marriage as suffice for the king. The rising,again, which won the charter of 1215, was distinctly a nationalrising, and the rights which were secured to the tenants inchief as against the king, were secured as against them fortheir tenants. The period from 1066 to 1215 we may regardas the age during which the feudal burdens are defined, partlyby charters obtained by the king, partly by the practice ofthe king's exchequer, which gradually develops into a regularroutine ; but many points are unsettled, the king will takeI Limitations to Feudalism 161what he can get, his tenants will pay as little as possiblewillnow and then revolt. In Glanvill's time, to give oneexample, the relief due from a knight's fee was fixed at IOOshillings; for socage land, one year's rent. He goes on tosay that as to baronies no certain rule has been laid down, forbaronies are relieved jtlxta voluntatem et misericordiam dominiregis I.Let us now recount the limitations which are set in thiscountry to the development of what can properly be calleda feudal system.(I) First and foremost, it never becomes law that there isno political bond between men save the bond of tenure.William himself seems to have seen the danger. We readthat in 1086 he came to Salisbury, 'and there came to himhis witan and all the landowning men that were worth aughtfrom over all England, whosesoever men they were, and allbowed themselves down to him and became his men, andswore oaths of fealty to him that they would be faithful tohim against all other men.' He exacted an oath of fealty notmerely from his own tenants, but from all the possessors ofland, no matter whose men they were ; they were to befaithful to him against all other men, even against their lords.This became fundamental law: we have before this seen itsresult; whenever homage or fealty was done to any mesnelord, the tenant expressly saved the faith that he owed to hislord the king. The oath of allegiance we find is exacted fromall men ; this exaction becomes part of the regular business ofthe local courts.(2) English law never recognizes that any man is boundto fight for his lord. The sub-tenant who holds by militaryservice is bound by his tenure to fight for the king; he isbound to follow his lord's banner, but only in the nationalarmy:-he is in nowise bound to espouse his lord's quarrels,least of all his quarrels with the king. Private war neverbecomes legal; it is a crime and a breach of the peace.Certainly there was a great deal of private war; certainly menfelt it their duty to follow their lord against his enemies, evenSelect Charters, p. 163.

Constitzttiona l Historyagainst the king; but this duty never succeeds in gettingitself acknowledged as a legal duty. If that seems to you toonatural to be worth mentioning, you should look at the historyof France; there it was definitely regarded as law that ina just quarrel the vassal must follow his immediate lord, evenagainst the king.(3) Though the military tenures supply the king with anarmy, it never becomes law that those who are not bound bytenure need not fight. The old national force, officered bythe sheriffs, does not cease to exist. Rufus had called it outfor compulsory service; more than once it was cal -.J outagainst the Scots ; in I 181 Henry I1 reorganized it by hisAssize of Arms; it was reorganized again under Edward Iby the Statute of Winchester in 1285 ; it is the militia of laterdays. Every man is bound to have arms suitable to hisdegree, down to the man who need but have bow and arrows.In this organization of the common folk under royal officers,there is all along a counterpoise to the military system offeudalism, and it serves the king well. The great families ofthe Conquest are at length pulverized between the hammer ofthe king and the anvil of the people.(4) Taxation is not feudalized. The king for a while isstrong enough to tax the nation, to tax the sub-tenants, toget straight at the mass of the people, their lands and theirgoods, without the intervention of their lords. When thetime for putting a restraint upon his power comes, it is onlyfor a brief while, if ever, the restraint of a purely feudalassembly of tenants in chief. The king deals with the smallerlandowners in the county court, until at last the county courtis represented at Westminster by knights of the shire. Onthe other hand, the king relying on the nation is strong enoughto insist that the lords shall not tax their tenants without hisconsent.(5) The administration of justice is never completelyfeudalized. The old local courts are kept alive, and are notfeudal assemblies. The jurisdiction of the feudal courts isstrictly limited ; criminal jurisdiction they have none save byexpress royal grant, and the kings are on the whole chary ofmaking such grants. Seldom, indeed, can any lord exerciseFeztdalisnz real and idealmore than what on the continent would have been consideredjustice of a very low degree. The two counties palatine areexceptions; but one of these, Durham, is in the hands ofa bishop, and the appointment of bishops is practically in theking's hands. As to Chester, our best representative of realfeudalism; about the middle of the thirteenth century a seriesof lucky accidents brings the earldom into the king's ownhands. The king again, as we have seen, rapidly extends thesphere of his own justice : before the middle of the thirteenthcentury his courts have practically become courts of firstinstan:? for the whole realm-from Henry 11's day hisitinerant justices have been carrying a common law throughthe land.(6) The Curia Regis, which is to become the communeconciZiz~?n regmi, never takes very definitely a feudal shape.The body of tenants in chief is too large, too heterogeneous forthat. It is much in the king's power to summon whom hewill, to take the advice of whom he will. The tradition ofa council of witan is not lost. Only slowly does a body ofbarons, or major barons, separate itself from the larger bodyof tenants in chief, and it long remains in the king's powerto decide who these major barons are, who shall be summonedby name to his councils. The residue of the tenants in chiefis not keen about going to court ; gradually it is lost in thebody of freeholders. When the time for a representativeparliament has come, the smaller tenants in chief are mixedwith their own sub-vassals, and the bodies which are representedby the knights of the shire sre the county courtsin which all freeholders find a place. The model parliamentof I295 follows closely on the great statute of 1290 (QuiaEmptores), which puts a stop to subinfeudation, and vastlydiminishes the public importance of tenure.Speaking generally then, that ideal feudalism of which wehave spoken, an ideal which was pretty completely realized inFrance during the tenth, eleventh and twelfth centuries, wasnever realized in England. Owing to the Norman Conquestone part of the theory was carried out in this country withconsistent and unexampled rigour; every square inch of landwas brought within the theory of tenure: English real ~roperty

1 64 Coastitationad History PERIOD Ilaw becomes a law of feudal tenures. In France, in Germany,allodial owners might be found : not one in England. Alsothe burdens of tenure were heavier here than elsewhere; thedoctrines of wardship and marriage were, I believe, severerhere than in any other country in Europe. On the other handour public law does not become feudal; in every directionthe force of feudalism is limited and checked by other ideas ;the public rights, the public duties of the Englishman are notconceived and cannot be conceived as the mere outcome offeudal compacts between man and lord.PERIOD 11.PUBLIC LAW AT THE DEATH OF HENRY VII.IT may seem strange to you that I should choose the year1509 as our next point of view. Certainly it would be morein accordance with tradition were we to pause at 1399, thedeposition of Richard 11, the accession of the House ofLancaster; again at 1461, the accession of the House of York,and again at 1485, the accession of the House of Tudor. Butfor one thing our time is short. In the second place it iswell to break with tradition even though that tradition bereasonable ; we ought to accustom ourselves to review ourconstitution from many different points of view, and I do notwish to repeat exactly what is in the books that you ought toread. In the third place a moment of crisis, when, so to speak,our constitution is thrown out of gear, does not seem the bestmoment at which to halt in order that we may inquire whatthe constitution is,-the end of the four and twenty peacefulyears during which Henry VII governed England seems tome a time at which we may profitably place ourselves inorder to survey the permanent results of the eventful twocenturies which have elapsed since the death of Edward I.The internal English history of these two centuries is verylargely a history of the relation between king and parliament;that relation has varied very much from time to time, it hasvaried with the character of the kings, the character of theparliaments, it has been affected by foreign wars and by civilwars; still there is a certain permanent outcome, a constitution,a body of public law., Our first duty must be to considerwhat a parliament is.

I 66 Constitutional History PERIODA. Parliament.I. Its Constitution.We find that the great precedent of 1295 has beenfollowed, that assemblies modelled on the assembly of thatyear have been constantly holden, that these have quitedefinitely acquired the name of parliaments. Parliament isstill, at least in theory, an assembly of the three estates ; wemust examine its component parts.(i) The Clergy.In the first place the two archbishops and the eighteenbishops are there, and as of old it may still be questionedwhether they are there as holding baronies or as the headsof the national church. The number of abbots has sunk to27; in I305 it was as high as 75; but the abbots haveinsisted that unless they hold territorial baronies they arenot bound to attend; they have cared little for nationalpolitics; no abbot has made himself conspicuous as a statesman: in I 509 their doom is at hand. The inferior clergy aresummoned by means of the praemunientes clause; but theyhave systematically refrained from attending; they havepreferred to vote their taxes in their convocations. In timetheir attendance has been required for the same purpose asthat of the commons; they have been told to come adfaciendum et consentie?zdum; this was the form down to1340; gradually it was supplanted by ad consentiendurn,which in I 377 became the invariable form : a consent tolegislation might be given by silence. We know that theclerical proctors did occasionally attend throughout the fourteenthcentury, but even when they appeared they apparentlytook but little part in the proceedings of the parliament.(ii) The Lords Temporal.The lords temporal are now divided into various ranks.In I307 we had only to speak of earls and barons ; butnow above the earls there are marquesses and dukes, andbetween the earls and barons there are viscounts. The firstEnglish dukedom was created in 1337, when Edward I11gave that dignity to the king's eldest son ; the dukedoms ofLancaster, Clarence, Gloucester and York were bestowedI I The Lords Tetq5ovaZ 167upon members of the royal house, and in 1397 Richard I1gave dukedoms to some who were not members of that house.He also made our first marquess, Robert de Vere, marquessof Dublin. The title of viscount was not given until thefifteenth century. These titles were imported from abroad.They were at first used in order to give some nobleman aprecedence over his fellows. They have never given morethan this, and have been legally unimportant. They neverimplied any territorial power or jurisdiction over the placewhence the title was derived. Even the old title of earlthough always taken from a county or county town had longceased to imply anything of the sort. The creation of thesenew dignities had, however, an important effect on the usualmode of creating peers. The dukes, marquesses and so forthwere created by patent, that is, by letters under the great sealdefinitely giving this rank to them and their heirs. Hitherto,as we have seen, barons had not been created in this way, thewrit summoning him or his ancestors to a parliament was allthat the baron could show. In 1387 Richard I1 created abaron by patent : this example was occasionally followed, andfrom 1446 onwards was regularly followed. We thus get tothe law of our own day, that a peerage must be created in oneof two ways, either by writ of summons or by letters patent,and it may save repetition hereafter if we now trace thismatter to an end.Since the fifteenth century a patent has been the regularmeans of creating a new peerage: it is now the means invariablyused. Such a patent usually confers the peerage,barony, earldom, dukedom, or whatever it be upon a manand the heirs male of his body. The House of Lords in1856 advised the crown that a patent which gave no morethan a peerage for life would not entitle the grantee to besummoned to parliament. A peerage created by patent mustbe descendible, inheritable: at this moment I can say nomore, because to go further would be to enter the domain ofreal property law; but you will read more of it in Sir WilliamAnson's book1. I believe that it must be admitted that as amatter of fact ever since the practice of creating peers byLaw and Custom of the Con~tifutzon. Parlzattzbt, c. VI.

I 68 Constitutional History PERIODpatent had been in use no distinct precedent could be foundfor an attempt to make a man a peer without giving him aninheritable right ; the decision of 1856 in the Wensleydalepeerage case was to the effect that this practice had begottena rule of law. But secondly I may claim a peerage and aright to be summoned on the mere ground that an ancestorof mine, whose heir I am, was once summoned and took hisseat. It is held that a mere writ of summons directed toA.B., if obeyed by him, confers on him a right descendibleto his heirs. Whether the kings of the thirteenth and fourteenthcenturies meant that this should be so, may well bedoubted, but on the whole the practice of summoning theheir was regularly observed, and in the sixteenth century therule that summons and sitting gives a descendible right wasregarded as fixed. A peerage may descend to a woman,although in modern times the patent usually prevents this bymentioning the heirs male of the body, or the king can confera peerage upon a woman. Thus a woman may be a peeressin her own right. No woman however has ever, says Dr Stubbs,sat in a full and proper parliament. The nearest approachto such a summons is that of four abbesses who in 1306 werecited to a great council held to grant an aid on the knightingof the Prince of Wales.We have before referred to the complicated question ofbarony by tenure. In I 509 the problem had not yet presenteditself in any very definite shape. There can be no doubt thatit was the general impression among both lawyers and othersthat the right to the writ of summons was in many cases stillannexed to the holding of certain lands forming a barony.Such land baronies however were so seldom alienated thatthe question had hardly arisen whether the alienee or thealienor's heir would have the better right to the summons.Freehold lands, we must remember, could not as yet be givenby will. As lands became more easily alienable the questionwas forced to the front and the decision was that the right tothe summons was not annexed to the property in the land,and consequently could not be alienated.Even when some definite rules as to the right to asummons were being evolved, the number of lords summoned11 Peerage 169varied greatly owing to minorities, attainders, extinction ofbaronies and similar causes. Under Henry IV the numbernever exceeded 50, under Henry V it only once reached40, under Henry VI it fell as low as 23 and reached 55,under Edward IV 50 was the maximum. The Wars of theRoses thinned the baronage, but not so much as is oftensupposed ; only 29 lay peers were summoned to the firstparliament of Henry VII, but in a few years the numberagain reached 40, though only five new peerages were created.It is well to remember this, for we are too apt to think ofthe House of Lords as an assembly of hereditary nobles.Throughout the Middle Ages the spiritual and non-hereditarypeers must often have been in a majority; even when thenumber of abbots had sunk to 27 they, with the two archbishopsand 28 bishops, could frequently have voted downthe whole lay peerage.We have been using the terms peers and peerage. Theseterms but gradually came into use during the fourteenthcentury. Originally of course pares only meant equals. Anew significance is given to the term by a principle deeplyimbedded in our old law, namely, that a man who is tobe judged, must be judged by those who are at least hisequals-the free man is not to be judged by villeins. Thusin Leg. Hen. Prim. 31 5 7, Unusquispue per pares suos estjz~dicandusl. So in feudal courts the vassal is not to be judgedby sub-vassals. Thus a man'spares came to mean those who,standing on the same level with him, are competent to be hisjudges-the body of judges is the pares curiae, the body ofpeers which sits in the court in question. This principle, as weall know, is solen~nly sanctioned by Magna Carta: the free manis not to be arrested nor imprisoned, disseised of his freehold,nor in any wise destroyed : tzisi per Zegale judicium parztlmsuorz~m 71eZ per legem terrae2. These words are apparentlyborrowed from the constitutions of German emperors. Do notbe persuaded that they have reference to trial by jury; theverdkt of a jury, the testimony of a body of neighbourSelect Cha;-ters, p. roo.&I. C. c. 39. History of English Law, vol. I, pp. 391-4. McKechnie,PP 436-59.

I 7O Colzstitutiona l History PERIODwitnesses, was in no sense a jzbdiczu7rz. The demand is ofa quite different kind; the barons want a court of theirequals-they are to be judged by barons. Theoretically thecuria Regis had probably been such a court; practically ithad become something very different, a tribunal constitutedby a few royal servants, some at least of whom were not ofbaronial rank, but were mere clerks and professional lawyers.The struggle of the barons for ajzfdiciz~m parizt~n is a long one;it can be traced through the thirteenth century and in the endit is not very successful ; against it the king opposes theassertion that his justices are good enough judges for anyman. Ultimately it succeeds thus far, that the lords get aright to trial by lords in case of treason and felony ; that isall; if they are to be tried for any lesser crime, any misdemeanour,the king's justices shall try them, and all theircivil litigation comes before the king's justices. Even as totreason and felony the demand seems to have been oftendisregarded. The modern principle that I have just laiddown is in truth a compromise-only in case of treason orfelony has the peer any privilege. It seems to have beensettled in the course of the fourteenth century. It required astatute of 1422 to secure the same privilege for noblewomen.Further, it should be observed that even in case of felony ortreason there is a distinction-the peer accused of such acrime was tried by his peers in parliament, if parliamentwere then sitting, and the assembled lords are in such a casejudges of both fact and law; but if parliament were notsitting, he was tried by a select body of peers chosen by theLord High Steward, in what came to be called a Court of theLord High Steward. The steward's office had at an early timebecome hereditary in the house of Leicester; it fell in toHenry IV and was merged in the royal dignity; thenceforthif a steward was wanted for the trial of a peen he wasappointed for the occasion by the king ; he chose a smallbody of lords, seemingly 23 was the usual number. In sucha case the lords thus summoned were considered only asjudges of fact, the Lord High Steward laid down the law. Notuntil after the Revolution of 1688 was it made necessary thatall peers should be summoned to form the High Steward'sI I Privileges of Peerage 171court, and then only in case of treason. It will probablystrike you that the privilege of being tried by some lordnominated for the purpose by the king and a small selectionof peers nominated by this royal nominee cannot have beena particularly valuable privilege, but this is all that thebaronage got with all its strivingsl.This privilege, however, served to define a class of peersor pares. It was not the only privilege of peerage. Thepeer enjoyed a certain freedom from arrest, he could not bearrested and imprisoned for debt, though he might be arrestedand imprisoned upon a charge of felony or treason. It iswell to observe how few were the privileges of peerage : howlittle of a caste was our estate of lords temporal. It becamethe fashion late in the day to talk of noble blood, of a man'sblood being ennobled when he was called to parliament.But this is nonsense unless it be held that the ancestor'sblood flows only to his heir, and unless the heir only beginsto have his ancestor's blood in his veins when that ancestordies. The sons and daughters of lords have from the firstbeen commoners during their father's lifetime, and on hisdeath only his heir becomes entitled to any legal privileges.Whatever social pre-eminence the families of peers may have,has no basis in our law: we have never had a noblesse. Ithas been asserted that bishops are not entitled to demand atrial by the House of Lords, on the ground that their bloodis not noble. The House of Lords asserted this in 1692, andit is a very doubtful question what would now happen if abishop committed felony or treason ; but as a matter of fact,so soon as the word 'peers' came into use, the bishops wereregularly recognized as peers of the land, and it is in thecase of Archbishop Stratford in I341 that we find the earliestdefinite formulation of the principle that peers are to be triedin parliament.It is well to remember that during the Middle Ages theking had considerable powers over the constitution of whatFor further light on this subject see L. 0. Pike, Conshtutional History ofthe House of Lords, c. x; L. W. Vernon-Harcourt, Nzs Grace the Steward and'%~l by Peers, and Law Quarterly Review, vol. XXIII, pp. 442-7 and vol. XXIV,k.1. 43-8.

Constitutional Historyhad come to be the upper House of Parliament. As to thelay peerage, even though usage hardening into law may haveobliged him to summon the heir of the late baron, he hada power, to which the law set no limit, of creating new peers.This power was not, I think, very freely exercised; theadvantage of a picked House of Lords was counterbalancedby the danger of creating new noble houses which would bedangerous to their creator. Over the spiritual part of thepeerage the royal power was at least as great. The mannerin which bishops were made had a long and complicatedhistory. Theoretically the bishop ought to have been electedby the cathedral chapters; the Great Charter promised thatsuch elections should be free ; practically, however, the makingof a new bishop was an affair for the king and the pope; ifthey worked together they had their way; when they quarrelledsometimes one, sometimes the other, was successful. Whena see fell vacant the king sent the chapter his licence to elect(co~zgk d'kire), accompanied by a letter (letters recommendatory)nominating the person who was to be elected. UnderHenry VI, a weak and pious king, the pope had his own way;he provided bishops, though such provisions were contrary toEnglish Acts of Parliament. Under Henry VII the royalnominees were invariably chosen. As to the abbots theywere elected by the monks, and neither king nor pope ofteninterfered with the election. As already said, the abbots playno distinguished part in parliament or politics.(iii)The Commons.First let us consider the knights of the shire. Thereare 37 counties returning two members apiece; Chester andDurham are not yet represented. We have seen that fromthe first the representatives were to be elected in the fullcounty court. As to the mode of election during the fourteenthcentury we know little more than this; though wemay gather from complaints of the commons that oftenenough the influence of the sheriff was all-powerful. It isbut gradually that the counties appreciate the privilegeof being represented, or that the duty of representing thecounty is regarded as an honour. In 1406 (7 Hen. IV, c. I 5 )11 Padiamenta~y Elections I73a statute directs that the election shall be made in the firstcounty court holden after the receipt of the writ ; it is to bemade in full county court. In 1410 (11 Hen. IV, c. I) theconduct of elections is placed under the cognizance of thejustices of assize, and a penalty of AIOO is demanded againsta sheriff who makes an undue return. In 1413 (I Hen. V, c. I)residence within the counties is made a qualification bothfor the electors and the elected. From 1430 we have theimportant act (8 Hen. VI, c. 7) which regulated the countyfranchise for the next four centuries:-the electors are to bepersons resident in the county, each of whom shall have freeholdto the value of 40 shillings per annum at the least aboveall charges. The act complains that elections have of latebeen made by 'very great, outrageous, and excessive numberof people, of which most part was people of small substanceand of no value, whereof every of them pretended a voiceequivalent as to such election with the most worthy knightsand esquires.' To start with, this must have been what wouldin our eyes be a fairly high qualification: the great changein the value of money caused by the discovery of silver inAmerica rendered it in course of time very low and verycapricious; the forty shilling freeholder had a vote, the copyholder,the leaseholder, had none, no matter how valuable hisland might be. In I432 another statute explains that thequalifying freehold must be situate within the county. Theking at various times exercised a power of inserting clausesin the writs directed to the sheriff specifying the sort ofpersons who were to be chosen-generally they were to betwo knights girt with swords ; this order, however, seems tohave been pretty generally disobeyed, many of the so-calledknights of the shire were not knights-in 1445 it is consideredsufficient that they should be knights of the shire ornotable squires, gentlemen of birth, capable of becomingknights; no man of the degree of yeoman or below it is tobe elected.The number of knights of the shire was, we have seen,constant, that of the citizens and burgesses fluctuated, diminishingpretty steadily as time went on. For the maximum numberof the boroughs represented we must go back to Edward I

174 Constitutio~znk History PERIODwhen 166 was reached; during the first half of the fifteenthcentury it had fallen to 99. After 1445 it begins to increasea little, Henry VI added 8 new boroughs, Edward IV addedor restored 5. It should be remarked that during the MiddleAges no writ was sent to the boroughs-the writ went to thesheriff of the county, commanding him to return two knightsfrom his shire, two citizens from every city, two burgessesfrom every borough. It was much in his power therefore todecide what towns should be represented. The towns veryoften desired not to be represented. According to the regularpractice a borough was taxed at a heavier rate than the shire-thus when a fifteenth was laid on the counties, a tenth waslaid on the boroughs ; also if a borough sent burgesses toparliament it had to pay their wages. In one case, that ofTorrington, in I 368, we find a borough successfully petitioningthe king that it may not be compelled to send members.It is very probable that other boroughs effected the sameobject by negotiations with the sheriff. A statute of 1382(5 Ric. 11, c. 4) denounces a punishment against the sheriff ifhe omits boroughs which have heretofore sent members.During the fifteenth century the privilege of being representedseems to have been a little more highly prized. We find theking conferring the right to send members upon new boroughs,or restoring it to boroughs which have been represented informer times. This power made it possible for the king topack the House of Commons ; but we do not find it liberallyexercised until the reign of Mary. The first House ofCommons of Henry VIII consisted of 298 members-74members for the shires, 224 for the cities and boroughs. Thenumber of borough members had largely exceeded that of theknights of the shire, nevertheless through the Middle Ages itis the knights of the shire who are the most active andindependent element in the parliament ; every movementproceeds from them-to them it is due that the House ofCommons takes its place beside the House of Lords.As to the qualification of electors in the boroughs, wehave seen that from the first it had varied from borough toborough. Lapse of time had done nothing to make it moreuniform; quite the reverse, no general law was made andI I Sejnmtio 9 z of the Houses I75each borough was left to work out its own destiny by the aidof charters purchased from the king. The only generalprinciple that can be laid down is this, that the later thecharter the more oligarchic is the constitution of the borough.A few towns acquired the right of being counties of themselves,of having their own sheriffs, and being exempt fromthe powers of the sheriff of the surrounding county. Londonhad acquired this privilege under Henry I-no other townsucceeded in getting it until Bristol became a county in 1373.York followed in 1396 and then Newcastle, Norwich, Lincoln,Hull, Southampton, Nottingham, Coventry, Canterbury. Insuch cases the writs were sent to the sheriffs of these countiescorporate and in some of thein the county qualification, theforty shilling freehold, was adopted as the qualification for theelectors. In other boroughs the qualification varies betweena wide democracy and the narrowest oligarchy.Long ago parliament had taken the shape familiar to us,an assembly consisting of two houses which sit, debate, andvote apart-the one containing the lords, spiritual and temporal,the other all the representatives of the commons. Howhigh this separation can be traced has been disputed; thereis no doubt that we can carry it back to the middle of thefourteenth century:-as regards the preceding half centurythere is some doubt, but Stubbs holds that very probablyfrom the very first moment the lords and commons sat apart.In the later Middle Ages they certainly sat in separate buildings,the lords in the Parliament Chamber of the king's palace,the commons generally in the Chapter House or the Refectoryof the Abbey of Westminster. Westminster had long agobecome the usual seat of parliament, though during the fourteenthand fifteenth centuries there were a not inconsiderablenumber of sessions at York and other towns ; it was for theking to decide when and whether he would summon a parliament.It is a noticeable fact that at a very early time,perhaps from the very beginning, the citizens and burgessessit together with the knights; there seems certainly for along while a feeling that as it is for the barons to tax themselves,and for the clergy to tax themselves, so the boroughsshould be taxed by burgesses and the county by knights of

1 76 Constitutioan Z History PERIODthe shire ; and as a matter of fact the boroughs and countiesare usually taxed at different rates-a 10th is imposed onboroughs, a I 5th on counties : nevertheless we soon find thatthe two sets of representatives act together-they are regardedas representing but one estate of men, the commons of therealm.The members of the common's house were paid wages bytheir constituents ; the knights of the shire received fourshillings a day, the burgesses two shillings ; in I427 we findthe townsmen of Cambridge making an agreement with theirmembers to take one shilling.It is worth looking at the words of the writs whereby aparliament is summoned ; they bring out the fact that thetwo houses had not originally been co-ordinate assemblies;a lord is told that the king intends to hold a parliament at acertain place and time, et ibidem vobiscz~m et cum ceterisprelatis, magnutibus, et proceribus regni nostri colloquiz~m habereet tractatzrm ; he is then enjoined, in fide et ligeancia quibzrsnobis tenemini, if he be a temporal lord, in $de et ddectiorze,if a spiritual lord to be present cum pyaelatis, ~nagnatibus, etproceribus praedictis superpraedictis negotiis tractatzui, vestrumqueconsilizrm imnpenszbri. A writ to a judge or to anothercouncillor who is not a peer omits the word ceteris-he is notone of the magnates or proceres of the kingdom, and theopinion is growing, as we have before said, that he had novote, and indeed no voice in debate, but is simply to give hisadvice if that is wanted. But the function of the lords asdistinguished from that of the commons is marked by thewords tractaturi vestrumpue comzsiliz~m impensari ; they are totreat with the king and give their counsel. The writ to thesheriff recites the king's intention of treating with the lords,theprelati, magnates, and proceres, and then directs the electionof knights, citizens and burgesses who are to have power onbehalf of their constituencies, county, cities, boroughs, toconsent to and to do what may be determined by thecommon counsel of the kingdom-ad faciendzrm et consentiendumhiis quae tunc ibidem de communi consilio regni nostrifavente domino ordinari contigerit super negotiis antedictis.They are not to treat with the king; it is not their counselthat the king wants, it is their consent-an active consentwhich shall be extended to doing (ad faciendum) what shallbe determined by the common counsel of the kingdom. Asto the clergy, we have already seen that from the time ofRichard I1 onwards the word faciendum drops out of thepraemunientes clause-they will not come to parliamenttheirabsence will be consent enough.I I. Frepz~ency and Duration of Parliament.Such then is a parliament :-but how far is it necessarythat there should be parliaments, and have parliaments beenfrequently and regularly holden? The question of law isintimately connected with the question of fact. Starting withthe assembly of 1295 parliaments soon become very frequent.Already in 131 I one of the ordinances decreed that thereshould be a parliament twice in every year; but this was partof a baronial scheme and it may be doubted whether morethan an assembly of barons was desired ; but when in I322Edward I1 had succeeded in casting off the yoke of thebaronial ordainers, the ordinances were repealed on the pleathat the consent of the estates had not been given. Theparliament of that year, 1322, published the following noteworthydeclaration, the first declaration we may say of thesupremacy of a full representative parliament-' the matterswhich are to be established for the estate of our lord the kingand of his heirs, and for the estate of the realm and of thepeople shall be treated, accorded and established in parliamentby our lord the king and by the consent of the prelates, earlsand barons, and the commonalty of the realm, according ashath been heretofore accustomed.' In I 330 at the beginningof the new reign we have a statute for annual parliaments(4 Edw. 111, c. 14). It is accorded that a parliament shall beholden in every year, or more often if need be. There can, Ithink, be little doubt that these words require that there shallbe a parliament at least in every year-if need be parliamentmay be held more often, but at least once a year it must beholden. The slight ambiguity of the phrase should be noticed-it becomes important hereafter. In 1362 (36 Edw. 111, C. 10)

I 78 Constitutions Z History PERIODanother statute ordains that 'a parliament shall be holdenevery year, as another time was ordained by statute.' Theseprovisions were fairly well kept for a long while; but therewere no parliaments in 1364, 1367, 1370, between 1373-6,1387, 1389, 1392, 1396, or between 1407-10. On the otherhand in a considerable number of years there were twoparliaments, in I340 there were three, in 1328 four. Each ofthese parliaments, you should understand, was a new parliament,involving a new election. The time was not yet whenthe same parliament would be kept alive year after year bymeans of prorogations. The frequency of parliaments, iftheoretically secured by the statutes just mentioned, waspractically secured by the king's need of money. He wascoming to be very dependent on supplies granted to him byparliament, and seldom was a tax imposed for more than asingle year. Under Edward IV, however, parliaments growmuch less frequent ; in his reign of twenty-two years he heldbut six; five years passed without any parliament. A considerablerevenue from the customs duties linown as tonnageand poundage had been granted to Henry V for his life ; thisgrant was repeated in the reign of Henry VI and of'Edward IV; Edward also had other means of gettingmoney, of which hereafter. Henry VII seems to have meantto rule like his Lancastrian ancestors by means of constantparliaments; before 1498 he had held six parliaments ;thenceforward to the end of his reign there was but onesession, namely in 1504. The statutes of Edward 111, however,remained on the statute book, and very importantthey became at a future time. I am not sure, however, thatEdward IV and Henry VII were considered by their contemporariesto be breaking the law in not holding annual sessions,however illegal might be the means which enabled them toget on without parliament. From our present standpointthen we see that the letter of the statute book probablyrequires annual parliaments ; we see, however, what is moreimportant than this, that for the last two centuries parliamentshave, as a matter of fact, been very frequent, though theirfrequency has somewhat decreased of late years.I I Direct Taxation I79I I I. Business of Parliament.And now for what purposes were parliaments necessary?It is with no general statement of the sovereignty (inthe modern sense) of the body composed by the king, thelords and the representatives of the commons, that we mustbegin our answer. Such a theory there cannot be, at leastto any good purpose, until a foundation of fact has been laidfor it, until the body thus composed has habitually andexclusively exercised the powers of sovereignty. We haveto see how this foundation of fact was gradually laid, andwe have to remember that at the beginning of the fourteenthcentury the king in parliament was by no means the onlypossible claimant of sovereign power. Representatives of thecommons had but newly been called to meet the prelates andbarons. Looking back now it may seem to us quite possiblethat sovereignty will ultimately be found to be in the kingand the baronage, or in the king and his council, or again inthe king alone.(i) The field of work in which the cooperation of a parliamentseems most necessary is that of taxation. In I297 theprinciple has been enounced that the common consent of therealm is necessary to the imposition of aids, prises, custon~s:saving the king's right to the ancient aids, prises andcustoms. The highroad of direct taxation is thus barredagainst the king, though at least one bypath is open. Theright to tallage the demesne has not been surrendered, and in1304 Edward I exercised that right. Edward I1 did thesame in 1312, and so did Edward I11 in 1332. But on thisoccasion parliament remonstrated and the king had to giveup his project. This seems the last attempt on the king'spart to set a tallage. In I340 (14 Edw. 111, stat. 2, c. I) astatute was obtained which declares that the people shall beno more charged or grieved to make any aid or sustain anycharge, if it be not by the common consent of the prelates, earls,barons and other great men and commons of the realm andthat in the parliament. Just at this time too the scutage, thecomposition for military service, was becoming unprofitableand obsolete, it belonged to an age which had passed away.

I 80 Constitzztionad History PERIOD BenevolencesAids for knighting the king's son and marrying his daughtercould still be collected ; but the amount of these was fixed bystatute in 1350, expressly applying to the king the rule laiddown for other lords (1275), namely 20 shillings from theknight's fee, and 20 shillings from A20 worth of socage land.These were an insignificant resource. On the whole, therefore,before the middle of the fourteenth century it was definitelyillegal for the king to impose a direct tax without the consentof parliament.The history of indirect taxation is more complicated.However, customs on wool, wine and general merchandisewere levied in the twelfth century. Magna Carta says thatmerchants are to be free from any 'maletolt' or unjustexaction, saving the ancient and right customs which arereferred to as well known things. In I275 parliament grantsto Edward a certain definite custom on wool ; but during thereigns of the first two Edwards the regulation of the customsis still constantly in dispute between the king and the nation.There is considerable danger that the king will get his way;it takes some little reflection to see that indirect taxes, suchas customs duties, are taxes at all :-if the king can bynegotiation, by grants of privileges, induce the merchants to,grant him such dues, may he not do so-is not this a matterbetween them and him ? The commons however seem earlyto have seen to the bottom of this question. Edward I11had to make important concessions. In 1362 (36 Edw. 111,stat. I, cap. I I) it is provided that no subsidy or othercharge should be set upon wool by the merchants or byany one else without the assent of parliament. In 1371(45 Edw. 111, c. 4) no imposition or charge shall be set uponwools, woolfells or leather, without the assent of parliament.This was re-enacted in 1387 (I I Ric. 11, c. g) but with a savingof the king's ancient right. The legislation on this subject ofindirect taxation is not quite so emphatically clear as thatwhich forbad direct imposts-some loopholes were left-stillwe may say that before the end of the fourteenth century thecontest was at an end. There were at least no obvious waysin which the king could tax the community without breakingthe law. The Lancastrian kings seem to have admittedthis. Even Edward IV may be said to have admitted it;in his reign it is that we begin to hear of benevolences,extorted freewill offerings. A statute of the only parliamentof Richard I11 (1483, I Richard 111, c. 2) was designed tostop this gap. The commons complain of new and unlawfulinventions--of a new imposition called a benevolence-andit is ordained that the subjects be in nowise charged by animposition called a benevolence or any such like charge, andthat such exactions shall be no example, but shall be damnedand annulled for ever.Under the Tudors the danger is of a different kind-it isnot so much that the king will tax without parliamentaryconsent, but that parliament will consent to just whatever theking wants and will condone his illegal acts. Thus in 1491Henry VII had recourse to a benevolence which brought himin a large sum. Very possibly the act of Richard I11 wasconsidered null as being the act of a usurper, though itremained upon the statute book. Rut at any rate the parliamentof 1495 made this benevolence lawful ex Post fncto;the king was empowered by statute to enforce the promisesof those who had promised money but not yet paid it. Suchan act, extremely dangerous as it was to the liberties of thenation, was none the less a high exercise of parliamentarysovereignty-parliament undertook to make legal what hadbeen illegal. That is one peculiarity of the Tudor time and avery remarkable one ; parliaments are so pliant to the king'swill that the king is very willing to acquiesce in every claimthat parliament may make to be part of the sovereign bodyof the realm. All the statutes against taxation by virtue ofprerogative are left unrepealed upon the statute book, to bearfruit in a future age-at present the king has no need to wishthem repealed.But not only had parliament repeatedly asserted thattaxes were not to be imposed without its consent, it had alsoexercised to the full a power of imposing taxes of all kinds,both direct and indirect. Further as regards taxation, theHouse of Commons had won a peculiar importance. Wehave to remember that, to start with, there are in theory threeestates of the realm : (I) clergy, (2) lords, and (3) commons.

Constitutional HistoryOn this theory it would be reasonable that each estate shouldtax itself; and this for some time takes place-the clergymake a grant, the lords another, the commons another. Butbefore the end of the fourteenth century the lords andcommons join in a grant, and a formula is used which putsthe commons (upon whom the bulk of taxation falls) into theforeground-the grant is made by the commons with theassent of the lords spiritual and temporal. This form appearsin 1395 and becomes the rule. In 1407 Henry IV assentedto the principle that money grants are to be initiated in theHouse of Commons, are not to be reported to the king untilboth Houses are agreed, and are to be reported by the Speakerof the Lower House. Thus a long step has already beenmade towards that exclusive control over taxation which theHouse of Commons claimed in later ages-the taxes uponthe laity are granted by the commons with the lords' assent.On the laity-the clergy still tax themselves in their convocationsand no act of the parliament is as yet requisite togive validity to such a tax ; to this extent the theory of thethree estates still prevails ; as a matter of fact, however, theconvocations pretty regularly follow the example of thecommons, making a corresponding grant to that which thecommons have made.Another point of importance is this, that during theMiddle Ages permanent taxes are very seldom imposed. Ingeneral a tax is granted just for this occasion only : the kingis granted a tenth of movables, or a customs duty, or it maybe a poll tax just to meet the present demands upon hisresources. Sometimes taxes are granted for two or threeyears to come, but this is rare. This renders an annual parliamenta practical necessity, particularly after the long warwith France has begun: every year now the king wantsmoney, and can only get it by summoning a parliament. Hisnon-parliamentary revenue which comes from his demesnelands, his feudal rights and so forth, is quite insufficient tomeet the drain of a war. Some of the customs duties werepermanent taxes. In 1414 parliament granted to Henry Vtonnage and poundage for his life. No similar grant for lifewas made to Henry VI until 1453-the 3Ist year of his reignPurveyance and Preewzjtion-but they were granted for life to Edward IV in 1465, toRichard I11 in 1484, and to Henry VII by his first parliament.Such repeated grants of permanent taxes weredangerous precedents, as we find when we come to the reignof CharIes I.Henry VII, it is said, left behind him a treasure of£I,~OO,OOO. Edward IV also had been rich. Their predecessorshad been habitually poor. The Wars of the Roseswere in a great degree due to the poverty of Henry VI-hecould not afford to govern the country thoroughly. Thischange in the king's financial circumstances is of course avery important matter-it absolves him from the necessity ofconvoking parliament. In two-and-twenty years Edward IVheld but six parliaments; Henry VII held but seven parliamentsduring his 24 years. Whence did he get his treasure?To a large extent it would seem from the escheats andforfeitures consequent on the Wars of the Roses ; to a largeextent also by pressing to their uttermost the crown's claimsfor fines. It was believed that his ministers, Empson andDudley, had trumped up all manner of accusations for thepurpose of swelling the revenue, and were guilty of unjustexactions under colour of the feudal rights to reliefs, wardshipsand marriage. At the beginning of the next reign theywere sacrificed to the popular outcry.One of the burdens which has lain heavy on the mass ofthe people has been that of purveyance and preemption, theright of the king and his servants to buy provisions at thelowest rate, to compel the owners to sell, and to pay at theirown time-which often enough meant never. It was anadmitted royal right; over and over again parliament hadsought by statute to bring it within reasonable bounds and toprevent abuses of it. Legislation begins with Magna Cartaand goes on through the Middle Ages ; one sees in such legislationat once the admitted claim of parliament to set limitsto royal rights, and on the other hand the extreme difficultythat there is in getting the king to observe any laws whichmake against his pecuniary interests.In another direction parliament has interfered with finance.In the first place it has claimed the power to appropriate the

Constitutio?zal Historysupplies granted to the king, to say that they shall be spentin this or that manner. Already in 1348 the money is to beapplied to the defence against the Scots, in 1353 to theprosecution of the war. In 1390 there is more elaborateappropriation out of the 40 shillings laid on the sack of wool,10 shillings the king may have for his present needs, whilethe other 30 shillings are only to be expended in case of thecontinuance of the war. This practice is continued with increasingelaboration under the Lancastrian kings. Rut it isone thing to say that money shall only be spent in this way,another to prevent its being spent in other ways. Parliamentbegins to demand the production of the royal accounts; wehear of this in I340 and 1341. In 1377 two persons areappointed by parliament to receive and expend the moneyvoted for the war. In 1379 the king presented his accounts,and thenceforward treasurers of the subsidies were regularlyappointed in parliament to account to the next parliament.In 1406 the commons were allowed to choose auditors;Henry IV told them that 'kings do not render accounts,' butin the next year he rendered them. But the principle hadto be contested over and over again ; it was a principle of novalue unless parliament had a will of its own which it wouldexert year by year-this the parliaments of Edward IV andHenry VII had not.(ii) We turn from finance to the wider subject of legislation.First let us observe, what is of great importance, thelegislative formula of a statute. In the reign of Henry VIIit has come to be almost exactly what it is at the presentmoment. 'The king our sovereign Lord Henry VII at hisParliament holden at Westminster ... by the assent of theLords spiritual and temporal and the commons in the saidparliament assembled and by the authority of the sameparliament hath done to be made certain statutes and ordinancesin manner and form following.' It is the king's act,done with the assent (sometimes the form runs 'advice andassent') of the lords spiritual and temporal and commons inparliament assembled and by the authority of the said parliament.These last words are pretty new, ' by the authority ofthe same parliament' ; they occur, it is said, for the first time.The Legislative Formulaas a part of the preamble in 1433, although they occur in amore casual way as early as 1421. It is admitted thereforethat a statute derives its authority from the whole parliament.Also we observe that the commons now stand on the samefooting as the lords ; their function in legislative work is ofthe same kind-they give advice, assent and authority. Butthis form has not always been used. Throughout the fourteenthcentury the commoners generally appear in a subordinateposition-the statute is made by the king with theassent of the prelates, earls and barons, and at the request ofthe knights of the shire and commons in the said parliament :sometimes it is at the instance and special request of thecommons-occasionally the assent of the con~mons is mentioned.This becomes more common in the fifteenth century ;in 1435 and 1436 we have 'by the advice and assent of thelords at the special request of the commons ' ; in 1439 ' bythe advice and assent of lords and commons '; and this formis used for several years. But in 1450 we revert to 'adviceand assent of lords and request of commons '-we get the oneform in 1455, the other in 1460. Throughout the reign ofEdward IV the two are promiscuously used. It is not untilthe House of Tudor is on the throne and the Middle Agesare at an end that all trace of the original position of thecommons has vanished. Nevertheless it had long beenadmitted that the assent of the commons was necessary inorder to give to a legislative act the quality of a statutethatthis was necessary at least if the law was to deal withtemporal affairs.Let us first take the point raised by these last words.We have to remember that at starting the commons couldhardly claim any higher place than that of the clergy, and wemust remember that the theory of the time partitioned humanaffairs into two provinces-spiritual and temporal. It mustlong have remained a doubtful question whether the king,with the advice of the lords, co.uld not make a statute on thepetition of the clergy, just as well as on the petition of thecommons-if the statute deals with the state the voice of thecommons must be heard, if with the church the voice of theclergy. Practically the clergy solved the difficulty by neglect-

Constitutions l Historying to accept the place that was offered them in the nationalassembly; but there are not wanting some signs that in thefourteenth century the accepted theory allowed the king tomake a statute with the assent of the lords on a petition of theclergy without consulting the commons. In 1377, however, thecommons definitely demanded that neither statute nor ordinanceshould be made on the petition of the clergy withoutthe consent of the commons: this demand seems to havebeen tacitly conceded. Turning to the other side of thetheory, it does not seem to have been very seriously contendedthat legislation approved by lords and commons required alsothe consent of the clergy ; but still the practice of summoningthem to parliament seems to have been maintained chiefly inorder to prevent their asserting that they were not bound bylaws to which they had not consented. The fact that theprelates were a majority in the House of Lords preventedcollisions between church and state, and was a guaranteethat the interests of the clergy would not be neglected. Itis worth notice, however, that, from an early time, the lordsspiritual and temporal were conceived as forming one bodyastatute might be made though the prelates had voted againstit. In 1351 they withheld their assent from the statute ofProvisors ; they are not mentioned in it as consenting parties,but still it was a statute.And now to the larger question as to the whereabouts oflegislative power. We have seen that already in 1322 theprinciple was announced that legislation required the consentof the prelates, earls, barons and commonalty of the realm.Such consent was necessary for a statute ; and from thattime onwards it seems an admitted principle that the consentof both houses was necessary for a statute: for a long timeto come indeed the function assigned to the commons was, aswe have seen, that of petitioning, not that of advising orassenting ; but of course ' petition ' is assent and somethingmore. Rut then we have to notice that a statute was not theonly known form of legislation ; we have to distinguish itfrom an ordinance. Now from Edward 1's day onwards a setof rolls known as statute rolls was kept. What was enteredupon them was a statute, and by the beginning of Edward 111's/Statute and Ordi~ancereign it was an established principle that nothing was to goon to the statute roll save what had received the consent ofking, lords and commons. We cannot apply this to earliertimes ; we to this day receive as statutes many laws made byEdward I in assemblies to which, as far as we know, norepresentatives of the commons were summoned; it is exceedinglydoubtful whether those two pillars of real property law,the Quia Emptores and the De Donis Conditionalibus, weremade with the assent of any such representatives. However,the principle is conceded under Edward 11. Rut although it beallowed that a statute may require the consent of both houses,this does not decide that in no other manner can laws bemade. Beside the statute there might be room for ordinancesmade by the king with the advice of the lords, or made bythe king in his council. ' Great councils,' magna concilia, arestill held under Edward I1 and Edward 111, meetings of theking and his council with the lords spiritual and temporal.Such assemblies, however, are chiefly held for deliberativepurposes-they were not serious rivals for parliament ; on thewhole the royal will was likely to find the lords as intractableas the commons. The rival that parliament had seriously tofear was the king in council. Now it seems to have beenadmitted during the fourteenth century that the king incouncil enjoyed a certain amount-or rather an uncertainamount-of legislative power. He could not revoke or alterstatutes ; he did so on more than one occasion, but this wasgenerally regarded as an abuse. But without revoking oroverriding statutes there was still a field for legislation; regardbeing had to past history we cannot be surprised at this. Wefind that parliament acknowledges the existence of this subordinatelegislative power, even on occasions desires that itmay be used. A statute is regarded as a very solemn affair,not easily to be repealed ; temporary legislation, legislationabout details, should be by ordinance. As time goes on, however,the existence of two legislative powers leads to frequentdisputes. Richard I1 presses the ordaining power beyond allbounds: ' What is the use,' asks a contemporary, ' of statutesmade in parliament? They have no effect. The king andbis privy council habitually alter and efface what has pre-

Constitutional Historyviously been established in parliament, not merely by thecommunity but even by the nobility1.' In 1389 the commonspray that the chancellor and council may not make ordinancescontrary to common law and statute. The king answers thatwhat has been done shall be done still, saving the king'sprerogative. Richard had a theory of absolute monarchy,and he was deposed. One of the charges against him wasthat he had said that the laws were in his own mouth andoften enough in his own breast. The Lancastrian kings werekings by Act of Parliament ; they meant to rule and did ruleby means of parliaments. Under them we hear few complaintsabout the ordaining power-they seem to have usedit sparingly. At the close of the Middle Ages its limits arestill very indefinite ; in this lies one of the great dangers forfuture times. The king, it is clear, cannot revoke or overridea statute, at least in a general fashion ; but still by ordinancesmade in his council he has a certain power of adding to thelaw of the land. We have been obliged to say that he cannotoverride a statute in a general fashion. But here again isanother danger-is there a dispensing power ?-can the kingexempt this or that person from the scope of a statute? Thathe has some such power it is difficult to deny; parliament hasquietly submitted to its exercise ; as regards certain statutesthe king has habitually exercised it, has given his license toA.B. to do something forbidden by statute: in particular theanti-papal statutes have habitually been dispensed with, sohave the statutes of mortmain which forbid religious bodiesto acquire land. What is the limit to this power? It is hardto say. The question is made the more difficult by this, thatvery often the sanction established by the statute is somefine or forfeiture of which the king is to have the benefitmaynot the king renounce this benefit in advance, may henot say that he will not exact it from A.B. if A.B. infringesthe statute? It is difficult to say that he may not. Twoindefinite powers, an ordaining and a dispensing power, areat the end of the Middle Ages part of the king's inheritance.Another point connected with these last questions has beencleared up. Throughout the fourteenth century there is dangerWalsingham, 11, 48.Stubbs, Constitutional Nzsto~y, vol. 11, § 292.Growing Bulk of Statute Low 189that though the king, with the lords' assent, grants the petitionof the commons, the consequent statute will by no means dojust what the commons want. The statute is not drawn upuntil after the parliament is dissolved ; its form is settled inthe king's council, and it may not correspond very closelywith the petition. The commons over and over again protestagainst this; the petitions are tampered with before they areturned into statutes. In I414 this point is conceded. Thecommons pray 'that there never be no law made and engrossedas statute and law neither by additions nor diminutions by nomanner of term or terms the which should change the sentenceand the intent asked.' The king in reply grants thatfrom henceforth 'nothing be enacted to the petition of thecommons contrary to their asking, whereby they should bebound without their assent1.' Thus gradually the practice isintroduced of sending up to the king not a petition but a billdrawn in the form of a statute, so that the king shall havenothing to do save to assent or dissent. This became theregular practice, and under Henry VII was adopted in mostcases of importance 2.It is needless to say that the king still retains and oftenexercises the power of refusing to legislate. A statute is stillvery really and truly the king's act. The form of assent hasalready become what it still is le roy le veut; the form ofdissent is le roy s'avisera-a civil form of saying No, but aform not unfrequently used.It should be remembered that legislative power is by thistime a power that has been constantly and freely exercised.The statute book is already a bulky volume. King andparliament have taken upon themselves to interfere withevery department of law-even to regulate the wages oflabourers, the price of commodities, the dress which may beworn by men and women of different stations in life. Thestatutes of Edward I11 and Richard I1 have hardly the deeppermanent interest which we find in the statutes of Edward I;they do not in the same way go to the very root of theRot. Parl. vol. 11, 22.2 The change took place about the end of the reign of Henry VI. Stubbs,Constitutional History, vol. 11, $ 290.

190 Constitutiona Z History PERIODordinary law, the land law, the law of civil procedure; stillthey are very miscellaneous and high-handed. Under theLancastrian kings there is less legislation-this is one of thecauses of their fall : the maintenance of peace and order isnot sufficiently attended to-the great men are becoming toogreat for the law. The few parliaments of Edward IV dolittle. Under Henry VII, though parliaments are few, stillthey pass valuable statutes; it is recognized that a good dealof the medieval common law sadly needs amendment-thereare new wants to be attended to-and above all order is tobe re-established and preserved.B. The King and his Council.The succession to the throne has had a stormy history.Before the end of the fourteenth century two kings havebeen deposed, and one king has succeeded to the throne who,according to our ideas, had no hereditary right. A modernconstitutional lawyer has no great difficulty with the case ofEdward 11, he can say that Edward resigned the kingdomand that he was at once succeeded by his rightful heir;if this be a precedent at all, it is a precedent for whatshould happen in case a king abdicates. Still there can, Ithink, be little doubt that the parliament which met inJanuary, 1327, conceived that it had full power to depose aworthless king. It had been summoned in a way which wasat least outwardly regular-the king was in fact a captive inthe hands of Isabella and Mortimer-the great seal was intheir power and the summons was issued in the king's name.The proceedings, however, were tumultuary. In the midst ofa noisy mob it was resolved to reject the father in favour ofthe son. Articles justifying the deposition were drawn upthecharges are very vague and general, amounting to this,that Edward was incompetent and incorrigible1. His resignationwas then procured. On the whole, as it seems to me,these proceedings, so far from strengthening the notion thata king might legally be deposed, demonstrated pretty clearlyStubbs, Constitutional History, vol. 11, § 255.Deposition of Richard 11that there was no body empowered by law to set the kingaside. The device of issuing writs in the king's own name,to summon the parliament which is to depose him, the extortionof a formal resignation, make the case rather a precedentfor revolution than a precedent for legal action'.We come now to the events of 1399. The deposition,for such for a moment we may call it, of Richard 11, has, Ithink, a greater constitutional significance than the depositionof Edward 11-that is to say, the complaints against himwhich found expression in a series of formal charges, arenot vague complaints of badness and uselessness, but accusehim of having broken the law. He has tried to play theabsolute monarch ; he has been acting on a theory of thekingship which is contrary to our laws-he has said that thelaws were in his own mouth and often in his own breast, thathe by himself could change and frame the laws of the kingdom,that the life of every liegeman, his lands, tenements, goodsand chattels, lay at his royal will without sentence of forfeiture,and he has acted on these sayings. The revolution,if such we call it, is in this case a protest against absolutism.We must not plunge into the general histoiy of the time;the forms observed are what chiefly concern us. Henry ofLancaster had landed, the nation as a whole had determinedthat he should be king-Richard had no party, made noserious effort, delivered himself up to Henry, and offeredto resign the crown. A parliament was then summoned, thewrits being attested by Richard and the council. It wasproposed that the king should execute a deed of resignationbefore the parliament met. It was objected that in such casethe parliament would be dissolved so soon as it met bythe act of resignation. The expedient was then adopted ofissuing new writs on the day on which the resignation wasdeclared, summoning the parliament to meet six days later.It will not be impertinent to mention that the idea of an heir inheriting,while yet his father is physically alive, was not unfamiliar to our medieval law.There was such a thing as civil death. If a man entered religion-that is to saybecame a molik-he died to the world; his heir at once inherited, his will tookeffect, and his executors might sue for debts that had been due to him. It mightwell be considered that a king who had abdicated was dead to the law. F. W. M.

192 Co~zstitutiolzal History PERIODThe Yorkist TitGeBefore the Parliament met Richard executed a formal deedof abdication, renouncing all royal rights, and absolving allhis people from homage, fealty and allegiance, and declaringhimself worthy to be deposed. On the meeting of parliamentthe deed was produced. The question was put whether itshould be accepted. It was accepted. The long list ofcharges was read, and parliament voted that they formed agood ground for deposing the king and that ex abundnntithey would proceed to depose him. A sentence was thendrawn up and read declaring that Richard was deposed fromall royal dignity and honour. Commissioners were then sentto read this sentence to him. Apparently it did not enter theheads of any concerned that the estates lawfully summonedcould not depose a king for sufficient cause-though he hadresigned, they put it to the vote whether his resignation shouldbe accepted and ex abzrndanti, as they said, proceeded formallyto depose him. Perhaps they feared to let the matter restupon an act of resignation, for this might leave it open forRichard to say at some future time, and not without truth,that the act was not voluntary, but had been extorted fromhim by duress. Still the deposition could really stand onno better footing than the abdication; if Richard was coercedinto resigning he was coerced into summoning the parliament,and only by virtue of the king's summons had the parliamentwhich deposed him any legal being. This perhaps is thereason why very soon afterwards Richard disappears from theworld.Richard deposed, Henry formally claimed the crown asdescended in the right line of descent from Henry 111 andas sent by God to recover his right, when the realm was inpoint to be undone for default of governance and undoingof the good laws. It was proposed and carried that he shouldbe king. The fact that Henry IV should have, though invague terms, asserted an hereditary right is certainly important-showing, as it does, that there was by this time a strongsentiment in favour of strict descent. He seems to havestooped to encouraging the story which had been trumpedup that his ancestor, Edmund of Lancaster, was the firstbornson of Henry 111-older therefore than Edward I. A titleas heir to Richard I1 or Edward 111 he did not assert. Suchan assertion would have opened a grave problem. Of courseaccording to what became the orthodox legal theory theHouse of York had a better right. It traced its title to Lionelof Clarence, a son of Edward 111, older than John of Gaunt,from whom Henry was descended-but then it had to tracethis title through a woman, through Lionel's daughter Philippa.Now certainly the analogies of private law were by this timein favour of the daughter of an elder son. Hut it is to beremembered that a title to the crown of England had notyet been transmitted by a woman, except in the case ofHenry 11, whose right came to him through his mother theEmpress. But in that case the only competitor was Stephen.Stephen himself claimed through a woman. It was quitepossible therefore to contend that so long as there was amale claiming solely through males, no woman, and no manclaiming through a woman, could be admitted. In favourof that doctrine Fortescue, chief justice under Henry VI,wrote an elaborate treatise; he was prepared to defend hismaster's title even as a matter of pure hereditary right. ButHenry IV at his accession seems to have shrunk from raisingthis question; he sought to evade it by hinting at a titlederived through his mother and Edmund of Lancaster fromHenry 111. However, it is to be noticed that in 1399 andfor many years afterwards we hear nothing of the Yorkistclaim, those who have what we regard as the best blood intheir veins acquiesce cheerfully in the parliamentary settlement;the Earl of York lives in close friendship with Henry V.There is no impression, at least no general impression, thatthe transactions of 13gg were not perfectly lawful or that theparliamentary title of the Lancastrian kings is disputable.Had Henry V left a decently competent son, even hadHenry VI married any woman but Margaret of Anjou, nothingmight ever have been heard of the Yorkist title. It is onlyin the course of bitter political strife that liichard of Yorkbegins to put forward his title as heir to Edward 111. Atfirst he is only anxious as to what is to happen when Henrydies, as probably he will die without issue, for he has beenmarried five years and has no son. This must open a dis-

Co~zstitutio~znl Historyputable succession because the Beauforts have claims of asort derived from John of Gaunt. The queen gave birthto a son, and, though not at once, the claim to be Henry'ssuccessor becomes a claim to supplant Henry. When in1460 the Duke of York laid his pedigree before the lordswith a formal denland for the crown, legitinlism makes itsfirst appearance in English history. A compromise waspatched up for a while-Henry was to remain king, but theDuke was to succeed him. War broke out, the Duke waskilled. His son Edward, Earl of March, seized the crownand sceptre and had himself proclaimed king Edward IV.He reckoned his reign from 4 March, 1461, the day on whichhe proclaimed himself king. There had been no formalelection, no parliamentary recognition : he reigned by hereditaryright. A parliament recognized the justice of the claim. Thethree Henrys became pretended kings, kings de facto but notu'e ju m.So far as I can understand it, the confusing struggle whichwe call the Wars of the Roses is not to any considerableextent a contest between opposite principles-it is a greatfaction fight in which the whole nation takes sides. Still theHouse of Lancaster was in a measure identified with atradition of parliamentary government, had been placed onthe throne to supplant a king who had a plan of absolutemonarchy, had been obliged to rely on parliament and moreespecially on the commons, perhaps owed its fall to its havingallowed both lords and commons to do what they pleased, toget on without government. On the other hand, the claim ofthe House of York was bound up with a claim to rule indefiance of statutes. It might be urged that the statutes werevoid as having never received the assent of any rightful king,but an assertion that the laws under which a nation has beenliving for the last half-century are not laws, because you oryour ancestors did not assent to them, is practically an assertionthat you have a right to rule in defiance of any laws howevermade.It is fortunate for us that Edward IV did not leave a sonold enough to step into his father's shoes, and that no soonerhad the crown been acquired by the legitimist family than theThe King's Powerssuccession was again disturbed by the crimes of Richard 111.Henry VII had according to our ideas little that even bycourtesy could be called hereditary right. Probably he wouldnot have got the crown had he not undertaken to marryElizabeth, the daughter of Edward IV. Still an hereditaryright he did assert, and Stubbs has argued that accordingto the notions of the time the assertion was not absurd'. Hewas accounted to have reigned from the day of Bosworth;'before his marriage parliament declared that the inheritanceof the crown should rest and remain in the then sovereignlord, king Henry VI I? and the heirs of his body ; he refusedto be king merely in right of his wife.The king's powers we might consider under various heads,but repetition must be avoided. We have already seenthat it is for him to summon parliament; parliament cannotmeet unless he issues writs. Again he could prorogueparliament, suspend its sessions and dissolve parliament.We have seen too that the constitution of a parliament. depended in no small degree upon his will; it was for him. to create peers-but the hereditary principle was here a checkon his power ; the bishops were practically his nominees ; hehad assumed the power of granting to boroughs the right tosend representatives; disputes over contested elections camebefore him and his council. His assent was absolutelynecessary to every statute ; besides this, he had a somewhatindeterminate power of making ordinances and dispensingwith statutes. Certain things he certainly could not do; hecould not repeal a statute, he could not impose a tax, it hadbecome unlawful for him to meddle with the ordinary courseof justice. He was bound by law-true the principle stillheld good, it holds good at the present day, that 'the king cando no wrong '-law had no coercive process against the king,he could not be sued or prosecuted ; the only way of gettingjustice out of him was by a petition, an appeal to his conscience.But means had already been found to reconcile this royalimmunity with ministerial responsibility-if he could not besued or prosecuted his servants could be, and his commandwould shield no one who had broken the law. What is more,' Lerlttres on Medieval alzd Modern Fislory, pp. 342-5.

Coastitzctionnd Historyas we shall see, a procedure by way of impeachment hadbeen evolved whereby parliament could bring home their responsibilityto his ministers.Rut then again, the executive or administrative or governmentalpower was the king's. You will be familiar with suchterms as these, they pass current in modern political life andof course they have a meaning. When we have marked offthe work of legislation, the imposing of general laws uponthe community, and also the work of judicature, the hearingand determining criminal charges and civil actions, there yetremains a large sphere of action, which we indicate by suchterms as these. Governmental seems to me the best of theseterms; execative and administrative suggest that the work inquestion consists merely in executing or administrating thelaw, in putting the laws in force. But in truth a great dealremains to be done beyond putting the laws in force-nonation can be governed entirely by general rules. We cansee this 1r-r~ plainly in our own day-but it is quite as trueof the Middle Ages:-there must be rulers or officers who havediscretionary powers, discretionary coercive powers, power todo or leave undone, power to command that this or that bedone or left undone. The law marks out their spheres ofaction, the law (as we think) gives them their powers. I donot wish you to think that a definite theory to the effect thatwhile legislative power resides in king and parliament, theso-called executive power is in the king alone, was a guidingtheory of medieval politics. On the contrary, the line betweenwhat the king could do without a parliament, and what hecould only do with the aid of parliament, was only drawnvery gradually, and it fluctuated from time to time. On theone hand we find that the king has a certain, or perhaps weshould say uncertain, power of making general ordinanceswhich shall have the force of law. On the other hand evenat an early time parliaments interfere with what a politicaltheorist would consider to be purely executive or governmentalwork : for instance they are sometimes strong enough to dictateto the king who shall be his councillors-as we should say,they appoint the ministry. Such a power as that our modernparliaments do not openly exercise, but it was exercised in11 Y,riatio?zs in the Mea~zi~zg of Kingshz? I 97the Middle Ages. Again we find a parliament ordaining thatthe taxes shall be paid to two particular persons and beexpended by them on the war. The production and auditof the royal accounts is also insisted on : this we cannotcall legislative business. In short, the more we study ourconstitution whether in the present or the past, the less dowe find it conform to any such plan as a philosopher mightinvent in his study.Still parliament, even when the king is weak, leaves him alarge field of action and expects him to be busy in it. Ado-nothing king, or a king who is merely a moderator betweencontending parties, or a king who merely executes the expresseddesires of parliament, is not the ideal king of theMiddle Ages. He is the ruler of the nation, the commanderof its armies and its fleets, the national treasure is his treasure,and in very general terms does parliament interfere with hisexpenditure ; it is for him to keep the peace, the peace is hispeace ; all public officers, high and low, with but few exceptionsare appointed by him, dismissible by him ; they hold theiroffices during his good pleasure-this is true of the highofficers of state, the chancellor and treasurer, it is true ofthe justices of the king's courts, it is true of the sheriffs, itis expected of him that he will supervise the work of hisservants, that he will call them to account, that he will dismissthem when they offend.It is somewhat unsatisfactory work, this attempt to speakin general terms of a long and eventful period like the twocenturies which divide the accession of Edward I1 from thatof Henry VIII. Changes in the letter of the law are, it may be,few and gradual, but the real meaning of the kingship variesfrom decade to decade. The character of the king, the wantsof the time, these decide not merely what he will do but whathe can do: this we must learn by tracing history step bystep,-by seeing that the kingship is practically a differentthing in almost every reign ; it changes as we pass fromEdward I11 to Richard 11, again as we pass from Richard I1to Henry IV, and so on. To watch this process in the detailof practice we have here no time, rather let us speak of theory,and theory we shall find is more permanent than practice.Richard 11, there can be little doubt, not only determined

Constitwtiona Z Historyto act as though he were an absolute monarch, but had atheory of absolute monarchy. He made 'a resolute attemptnot to evade but to destroy the limitations' which had beenimposed upon his predecessors, and he had a theory whichjustified him in the attempt ; such limitations were vain, idleefforts to limit a limitless prerogative? When he falls it isnot merely his practice but his theory that is condemnednotmerely has he been guilty of many illegalities, but he hasheld himself above law : he has said that the laws are in hisown breast, that the lives, lands and goods of the subjectsare the king's-in short, puod principi placuit legis habetvigorem. He is deposed, and it is as representatives of adifferent theory-that of a king below the law-that theHouse of Lancaster is to reign. The king, as Bracton hadsaid more than a century ago, has above him the law whichmakes him king. This principle is stated repeatedly andvery clearly by the greatest English writer on law of thefifteenth century. Sir John Fortescue was made chief justiceof the King's Bench in 1422 and he served the House ofLancaster in good and evil fortune until all was lost. Hedid not die until after 1476. His most famous work, DeLaz~dibus Legz~m Arzgliae, was written about 1469. In thisand in other treatises he keeps repeating that the king ofEngland is no absolute monarch. The state of France giveshim an opportunity of explaining by way of contrast whathe means. The king of France is an absolute monarchinFrance that saying of the civil law holds good, puodprinc+i placuit legis habet vigorem. But it is not so inEngland. ' Ther bith ij kindes of kingdomes of the wich thaton is a lordship callid in laten dominiurn r~gale and that otheris callid dorniniugn politiczcm et regale. And thai diversen inthat the first kynge may rule his peple bi suche lawes as hemakyth himself, and therefor he may sette uppon them taylesand other imposicions, such as he woe hymself, without theirassent. The secounde king may not rule his peple bi otherlawes than such as thai assenten unto. And therefore he maysett upon them non imposicions without thair own assent2.'Stubbs, Constitutional History, vol. 11, 8 268.Fortescue, Governancr of England, ed. Plummer, p. 109; cf. also DeLatrdibics, cc. 34-7.aThe CouncilThe kingdon1 of England is of this second kind. This doctrineFortescue maintained even after the hopes of the Lancastrianparty were at an end and he himself had made his peacewith Edward IV-and I believe we may say that it was thegenerally accepted doctrine of the time. Edward, howeverarbitrary might be his acts, asserted no theoretic claim to beabove the law. The same may be said of Henry VII. Thedanger during the whole Tudor period is not that the kingwill assert such a principle but that practically he will be ableto get exactly what he wants by means of submissive andsubservient parliaments. It is the fashion now to speak ofEdward IV as beginning 'the New Monarchy,' and there ispoint enough in this title-but the legal limits of royal powererected in earlier centuries remain where they were. In thechanged circumstances the king is beginning to find out thatparliamentary institutions can be made the engines of his will.We turn from the king to the king's council, the earlyhistory of which we have already traced1. The king had athis side a body of sworn councillors. During the fourteenthcentury this body becomes definitely distinct from parliamenton the one hand, and from the Courts of Law on the other. Thecomposition of the council depends as a general rule on theking's will, though occasionally parliament has interfered withit. We have the list of the council as it was in I404 underHenry IV; it contains three bishops, nine peers, seven commoners,in all nineteen persons. They can be dismissed bythe king whenever he pleases ; they are sworn to advise theking according to the best of their cunning and discretion.They receive salaries of large amount. They meet constantly;the king is not usually present at their deliberations. Theproceedings of the council are committed to writing; thisbegins at least as early as 1386-the proceedings from thatyear until 1460 have been printed by the Record Commissioners.The function of the council, we may say, is toadvise the king upon every exercise of the royal power.Every sort of ordinance, licence, pardon that the king canissue is brought before the council. Sometimes parliamentSee p. gr , and Dicey's Privy Council.

Co?zstitzctio~zaG Historytrusts it with extraordinary powers of legislation and taxation,allows it to suspend or dispense with statutes, to raise loans,and the like. It is to the advice of the council that the kinglooks in all his financial difficulties, which are many.But though the royal council has thus become a permanentpart of the machinery of government, and a mostimportant part, still it is, we may say, an unstable institution--that is, its real power is constantly changing from time totime. Under a strong king it is really no check upon hiswill ; he can appoint it and he can dismiss it; he is notobliged to take its advice, he is not even obliged to ask itsadvice. This Henry VII has discovered ; he does not bringthe weightiest matters before the council, or does not do SOuntil he has made up his own mind : the council then has toregister foregone conclusions. But under weak kings it hasbeen otherwise, and under infant kings the council has ruledEngland. It will be no digression therefore if we say a littleof royal minorities.Since the Norman Conquest there have been three cases.Henry 111 was nine years old when he began to reign ;Richard I1 eleven years; Henry VI was but nine months.We have further to remember that during a considerablepart of his reign Henry VI was perfectly imbecile. WhenHenry I11 succeeded to the throne there was no member ofthe royal house capable of urging any claim to be regent.This is an important fact, for it gave rise to an importantprecedent. The barons, in whose power the young king was,appointed William Marshall, Earl of Pembroke, rector regiset regni, and associated certain councillors with him. Wehave already seen how it is to this time that we can definitelytrace the existence of a concili~tvz Regis that is distinct fromthe cztria Regis. Within three years the regent died. Noonewas appointed to fill his place, but the government wascarried on by the council, at the head of which stood Hubertde Burgh, the chief justiciar. Our public law had madegreat advances before the next case arose, the accession ofRichard 11. On his coronation the assembled magnatesappointed no regent, but named a council of government.Before long, troubles set in and the king had to submit to theMinoritiesrestraint of a council appointed by parliament; not until hewas three-and-twenty was he able to free himself from thiscontrol. When Henry VI succeeded his father we hear of adefinite claim to the regency. His uncle, the Duke of Gloucester,claimed the regency both as next of kin and under thewill of the late king. But this claim was disallowed by thelords assembled in parliament ; after searching for precedentsthey pronounced that he could not claim the regency on thescore of relationship, and that Henry V could not dispose ofthe government of the kingdom by his will. An act ofParliament constituted the Duke of Bedford protector anddefender of the realm and church of England. The assent ofthe king to this act of parliament must of course have been amere fiction-he was but a few months old. This precedentsanctioned what has since been regarded as law, namely, thatour law makes no provision for any regency, that the king'snearest kinsman has not as such any claim to be regent, thata king cannot by his will declare effectually who is to governEngland after his death. If such a case arises parliamentmust provide for it. Further, the king, no matter how younghe is, can give his assent to an act of parliament--this, it istrue, may be a fictitious assent, but a king is bound by theacts of parliament done during his minority: obviously thisdoctrine has difficulties before it, with which however we arenot at this moment concerned. 'During the minority ofHenry VI the council was a real council of regency and byno means a mere consultative body in attendance on theprotector. It defined its own power in the statement thatupon it during the king's minority devolved the exerciseand execution of all the powers of sovereignty1.' Rut thenwhen Henry came of age the council became once more anew instrument in the hands of the king, or of those who,for the time being, could gain an ascendancy over the king.In 1454 Henry became quite imbecile; it was impossibleto get a word from him. The lords chose the Duke ofYork protector and defender of the realm ; this resolutionwas embodied in an act to which the commons gave their

Colrstitzctiorznl Historyassent; the king had just sense enough to place the greatseal in the hands of the Earl of Salisbury, and in this waythe royal assent was given. In the next year the kingrecovered his senses, but in a few months he again fell ill,and the same ceremony of appointing a protector by act ofparliament was enacted.Under Edward IV and the Tudors the council ceases to beany real restraint upon the king. Its power, it is true, increases,but this merely means an increase of the royal power. It ispowerful against all others, but weak against the king. It isbut an assembly of the king's servants, whom he appointsand dismisses as pleases him best, whom he consults when itpleases him, and only when it pleases him. Henry VII, saysBacon, in his greatest business imparted himself to none,except it were to Morton and Fox. No law compelled himto ask advice ; all the powers which any council could exercisewere simply the king's powers, powers which the king himselfmight exercise if and when he pleased.A certain limitation to this principle was found in thepractice regarding the king's seals. From the Norman daysonward the king's will had been signified by writs, charters,letters patent, letters close and so forth, sealed with the royalseal. No document without the king's seal could be regardedas an authentic expression of the king's command. The king'sGreat Seal was committed to the Chancellor-he was the headof the whole secretarial establishment, (as we now might say)the Secretary of State for all departments. When in themiddle of the thirteenth century the chief justiciarship cameto an end, the chancellorship grew in dignity and in power.During the later Middle Ages and far on through the Tudortime the chancellor is the king's first minister-prime minister.The possession of the royal seal makes his office of the firstimportance. Gradually we begin to hear of other sealsbesides the great seal. The chancellor has so much miscellaneouswork to perform as a judge and otherwise, so muchroutine business requires the great seal, that for mattersdirectly affecting the king a privy seal is in use. The kingunder his privy seal gives directions to the chancellor as tothe use of the great seal. Then this privy seal is committedDoctyke of the Royal Sealsto the keeping of an officer, the Keeper of the Privy Seal.In course of time a yet more private secretary intervenesbetween the king and these high officers of state, namely, theking's clerk or king's secretary, as he comes to be called, whokeeps the king's signet. In the Tudor time we find twoking's secretaries, who before the end of that time are knownas secretaries of state. A regular routine establishes itselfdocumentssigned by the king's own hand, the royal signmanual, and countersigned by the secretary are sent to thekeeper of the privy seal, as instructions for documents to beissued under the privy seal, and these again serve as instructionsfor the chancellor to issue documents bearing the greatseal of the realm. This practice begets a certain ministerialresponsibility for the king's acts. The law courts will notrecognize any document as expressing the royal will unlessit bears the great seal or at least the privy seal. This insuresthat some minister will have committed himself to thatexpression of the royal will. The ministers themselves aremuch concerned in the maintenance of this routine; theyfear being called in question for the king's acts and havingno proof that they are the king's acts. The chancellor fearsto affix the great seal unless he has some document underthe privy seal that he can procluce as his warrant; the keeperof the privy seal is anxious to have the king's own handwritingattested by the king's secretary. For the king againthis is a useful arrangement; it is the duty of these officers toremember the king's interests, to know how the king's affairsstand; as the king's affairs grow more manifold, division oflabour becomes necessary; there must be an officer at thehead of every department bound to see that the king is notcheated or prejudiced, and the danger of his interests beingneglected is decreased, if in the ordinary course of businesshis letters have to pass through several different hands. Thus,even when there is on the throne a strong-willed king with apolicy of his own, ministers are necessary to him. At presentwe may say this is a matter of convenience, but in thisdoctrine of the royal seals we can see the foundation for ourmodern doctrine of ministerial responsibility-that for everyexercise of the royal power some minister is answerable.

Constitutiovzal HistoryC. A dwzinist7*ation of Justice.Hitherto we have said nothing of what in general estimationconstitutes the most important side of the council'shistory, the history of its judicial powers ; but to this weshall best come by first taking a short review of the administrationof justice as a whole.More and more the king's courts have become the onlycourts of the first importance. Of the feudal and the ancientcommunal courts we need say but very little ; by one meansand another business has been drawn away from them. Thatan action for freehold land should be begun in the courtbaron of the lord of whom the land is holden is a principleunrepealed-it remains indeed unrepealed until I 833 ; butmany ways of evading it have been devised by the ingenuityof lawyers, and it has in truth become a dead letter. \Ve mayindeed doubt whether in Henry VII's reign there are manycourts baron which have more than a nominal existence.Even the customary court of the manor has suffered aheavy blow. It was, you will remember, the court for thosewho, whether personally villeins or no, held their land byvillein tenure. In Henry VII's day personal villeinage, owingto causes which we cannot here discuss, has practically becomeextinct. But further, and this is of great importance, theking's courts have at length decided to protect the tenant invilleinage in his holding. He is now getting a new name,derived from those copies of the court rolls which serve asevidence of his title ; he is a tenant by copy of court roll, inshorter phrase a copyholder. At length the king's courtshave decided that he shall no longer be left with merely suchprotection in his holding as the manorial courts afford-if thelord contrary to the custom of the manor turns him out, heshall have an action against his lord, an action of trespass inthe king's courts. In 1457 we get a hint that this is so; in1467, and again in 1481, it is definitely said that the copyholdercan bring an action against his lord if ejected contraryto the manorial custom. The manorial custom thus becomesa recognized part of the law of the land, to be enforced in3 and 4 Will. IV, c. 27.11 Decay of Feudal and Co~zmwzaZ Courts 205the king's court. This of course was a serious blow tothe manorial courts-contentious business was taken fromthem-anyone who claimed copyhold land instead of goingto them would go to the king's courts, where he would get amore certain justice. A great deal of business remained, andstill in theory remains, for the customary court to do. Thecopyholder when he wishes to convey his land must surrenderit into the hands of the lord, who then admits a new tenant ;such surrenders and admittances took place in court-intheory they took place in court until very lately-but all thisbusiness became more and more a matter of routine now thatthe king's courts had fully recognized the rights of the copyholdtenant. If the customary dues were paid the lord hadno choice but to accept the surrender and admit the newtenant, and these surrenders and admittances were in factaccomplished in what only by fiction and figure of speechcould be called a court-practically there was but a transactionbetween the tenant and the lord's steward. However,our present point is that before the end of Henry VII's day,owing rather to the ingenious devices of lawyers in search ofbusiness than to any legislation, the manorial courts hadceased to be of any great importance as tribunals for contentiousbusiness.As regards what I have called the communal courts, wehave seen that before the end of Edward 1's reign a rule hadbeen established which made them courts for small cases : theywere not to entertain cases in which more than 40 shillingswas at stake1. In Henry VII's time the county court wasstill held month by month, and the sum of 40 shillillgs hadnot yet become a trivial sum ; but long before this the freeholdersof the shire had been allowed to discharge their dutyof appearing at the monthly court by sending their attorneysinstead of coming in person, and it is very probable that thejudicial business was practically transacted by the sheriffwithout much interference on the part of the freeholders ortheir representatives. Trial by jury has not, we see, made itsway into the procedure of these courts; they still make useof the ancient system of compurgation.See p. 132.

206 Constitutional History PERIOD Jzcstices of the PeaceBut we have now to notice a new institution which hasgrown up since the days of Edward I, an institution which isto play a very large part both in the administration of justiceand in local government, namely, the justices of the peace. Inthe thirteenth century we hear occasionally of knights of theshire being assigned, that is, appointed, to keep the peacesometimesthey seem to be elected by the county court.Their duty seems to be that of assisting, perhaps also ofchecking, the sheriff in his work of preserving the peace,arresting malefactors, and the like. Then immediately afterthe accession of Edward 111 a statute is passed (1327,I Edw. 111, stat. 2, c. 16) to the effect that in every shiregood and lawful men shall be assigned to keep the peace.In 1330 (4 Edw. 111, c. 2) it is repeated that good and lawfulmen shall be assigned in every county to keep the peace;those who are indicted before them are to be imprisoned, andthey are to send the indictments to the justices of gaoldelivery. These cz~stodes pacis, conservators of the peace,have therefore already power to receive indictments, theaccusations preferred by juries, but they do not as yet trythe indicted ; they commit them to prison to take their trialbefore the king's judges on their circuits. In 1360 anotherstep is taken. A statute (34 Edw. 111, c. I) repeats that inevery county there shall be assigned for the keeping of thepeace one lord and, with him, three or four of the mostworthy of the county, with some learned in the law, andthey are to have power to arrest n~alefactors, to receive indictmentsagainst them, and to hear and determine at the king'ssuit all manner of felonies and trespasses done in their countyaccording to the law and customs of the realm. The conservatorsof the peace are now authorised not merely toreceive indictments, but to try the indicted. Very soon afterthis, having been trusted with these high judicial powers, theycome to be known as justices; they are no longer mereconservators of the peace, they are justices of the peace. In1388 it is directed by statute that they are to hold theirsessions four times a year-this is the origin of those QuarterSessions of justices of the peace which are still held in ourown day. Now this new ~nstitution soon becomes very popularwith parliament and flourishes ; parliament constantly addsto the powers of these justices ; they are in truth men drawnfrom the same class of country gentlemen which suppliesparliament with knights of the shire. For a long time thereare persistent demands that the justices shall be elected bythe freeholders; this demand finds expression in manypetitions presented by parliament to Edward 111. But onthis point the king will not give way, he will keep the appointmentof justices in the hands of himself and his council. Itis so common now-a-days to regard our constitutional historyas one long triumph of the elective principle, that it is well tonotice that at two points this principle was persistently urgedand finally defeated. Our ancestors wanted elected sheriffs,and they wanted elected justices of the peace; to this day oursheriffs and our justices are appointed by the king, and I donot suppose that one would wish them elected. The justicesof the fourteenth century were paid wages-four shillingsfor each day of session ; they were entitled to these wagesuntil very lately ; here again the great change in the value ofmoney which took place in the sixteenth century has hadimportant effects on our constitutional law. In Richard 11'sday a form of commission was settled which, in all the mostmaterial respects, is that still in use. The king assigns certainpersons by name to be his justices in a particular county;he empowers every one of them to keep the peace and toarrest malefactors, and he empowers every two of them tohold sessions for the trial of indicted persons.Now at the period with which we are dealing these arethe main duties of the justices of the peace :-(I) they are tokeep the peace by putting down riots, arresting offenders andso forth, and (2) in their quarter sessions they are to tryindicted persons-the trial is a formal trial by jury. Theirpower extends over pretty well all indictable offences excepttreason only, but the more difficult cases they are directed toreserve for the king's judges on their circuits. These aretheir main duties, but parliament has been gradually addingmany other duties of a very miscellaneous character. Inparticular, parliament has long been engaged on elaboratelegislation about the rate of wages. We have to remember

Constitzctio~zud Historythe Black Death of 1349, one of the greatest economic catastrophiesin all history; the guess has been made that itdestroyed not much less than half the population. It utterlyunsettled the medieval system of agriculture and industry:wages of course rose enormously ; parliament endeavouredby statute after statute to keep them down, to fix a legal rateof wages. This attempt produced many of the grievanceswhich burst into flame in the revolt of 1381, 'one of the mostportentous phenomena to be found in the whole of our history.But still parliament did not abandon the effort: to gain its endit endowed the justices of the peace, representatives of thelandowning class, with very large powers of compelling mento work for the legal wage. After a while, in 1427, it evendelegated to these justices the power of fixing the legal rate :the justices of the peace were the justices of labourers alsoinour language they have not merely judicial powers, theyhave governmental powers also. And this matter of wages,though it is the most important, is by no means the onlyspecimen of governmental duties cast upon the justices of thepeace. More and more the quarter sessions of the peacebegin to supplant the old county court as the real governingassembly of the shire; the old county court sinks into a meretribunal for small civil suits. In 1494 we find that the justiceshave even got a control over the sheriff: by I I Hen. VII,c. I 5, they are empowered to entertain complaints against thesheriff as to extortions practised by him in the county court,and to convict him and his officers in a summary fashion.This power to convict persons in a summary fashion, that isto say, without trial by jury, is, we observe, being given tojustices in a number of cases. The practice begins in thefifteenth century and becomes very usual in the sixteenth :parliament is discovering that for petty offences trial by juryis a much too elaborate procedure. An instance or two maybe given :-In 1433 (11 Hen. VI, c. 8) the justices are empowered topunish in a summary way those who use false weights ormeasures ; in 1464 we have an elaborate statute (4 Edw. IV,c. I) about the making of cloth, regulating matters betweenmaster and man ; upon complaint made of any offence againstthis ordinance, the justices of the peace may send for theparty and examine him, and if the party by examination orother due proof be found guilty he is to be fined; in 1477(17 Edw. IV, c. 4) we have a similar statute about the makingof tiles; in I503 the justices are to punish those who takeyoung herons from their nests-they are to call the suspectedperson before them and by their discretion examine him.The statutes, of which these are specimens, seldom lay downany rules of procedure, only it is made clear that there neednot be trial by jury, and that the suspected persons may bequestioned.We see here then a yet young but very strong and healthyinstitution, one which has a great future before it. Countrygentlemen commissioned by the king are to keep the peaceof the shire, are to constitute a court of quarter sessions withhigh criminal jurisdiction, are to punish the pettier offences ina summary way, are to exercise miscellaneous governmentalpowers and police powers-to fix the legal rate of wages forexample. They are to be substantial men. In 1439 a statute(18 Hen. VI, c. 11) says that they are to have lands ortenements to the value of A20 a year. At present their numberis small, some six or eight for the shire: during the Tudortime it increases. The Tudor kings find here a useful institutionfor the purposes of their strong policy-for from the firsta stern check has been kept upon these justices; not onlyhave the courts of law been ready, perhaps eager, to noticeany transgression by the justices of their statutory powers(for the old courts will not suffer any rivalry, and will put thenarrowest construction upon any statute which authorizes anydeparture from the procedure of the common law), but alsothese justices are specially under the eye of the royal council.A statute of 1388 (12 Ric. 11, c. IO), when giving themcertain new powers of dealing with labourers, threatens themwith punishment at the discretion of the king's council if theydo not hold their sessions. We shall have much more to sayof Justices of the peace hereafter.The three old courts-the three superior courts of commonlaw, King's Bench, Common Pleas and Exchequer-havegrown in power and dignity. The number of the judges is

DeveZojment of the Jzqysmall, though it has not yet become fixed at the sacredtwelve-and they are now erudite lawyers, men who havemade their fame by practising at the bar. The line ofdemarcation between the provinces of these three courts isnot so plain as once it was, for by the use of ingenious fictionsthe King's Bench has been stealing business from the CommonPleas, and the Exchequer is beginning to follow its example.But to one or the other of these three courts goes almost allof the civil litigation of the realm-all that the local courts areincompetent to entertain. The King's Bench is the supremecourt for criminal cases, and the Exchequer still keeps itsmonopoly of all cases touching the royal revenue. Thesecourts have by this time become purely judicial institutions,they have little or nothing to do with governmental work ; itis their function to hear and determine causes according tothe law of the land, and they are very conservative of all theformalities of their procedure. Already the Year Bookscontain vast masses of decided cases, and these cases aretreated as binding authorities.Then again the ambulatory or visitatorial courts have beenmaintained. Twice a year or so the counties are visited byjustices, whose commissions enable them to deliver the gaolsand to hear and determine all the criminal business, or all suchpart of it as is not disposed of by the justices of the peace attheir quarter sessions-whose commissions enable them alsoto take the trial of civil cases which are depending in theking's courts at Westminster. A great deal of this work isdone by the judges of the three common law courts-indeed,by statute, much of it must now be done by them-thoughother persons, landowners of the county, are associated withthem in the commissions. The work of these itinerant justiceshas now become purely judicial work-to preside at trials, tohear and decide causes ; they no longer, like their predecessorsof the twelfth century, add to this duty that of looking afterthe royal revenue and conserving the king's interests. Whatis more, we no longer find that the whole county is summonedto meet them, with all its hundreds, boroughs and townshipsrepresented. A single grand jury now represents thecounty: the older plan had been found very burdensome,and seems to have been abandoned late in the fourteenthcenturyA great change has been coming over trial by jury sincewe Iast looked at it, and trial by jury has become of greatimportance in national history. The change has been a slowone, and it is hardly yet completed. Turning first to civilcases we may formulate the change thus:-the twelve jurorsare ceasing to be witnesses and are becoming judges of fact ;it is no longer the theory that before they come into courtthey will know the truth about the matters at issue, but whenthey come into court the parties put evidence before them,produce witnesses who testify in the judge's hearing. We seethat this is so from a book already mentioned: Sir JohnFortescue, De Lnz4dibu.s Legzrnz AngZiae. He describes how' each of the parties by themselves or their counsel in presenceof the court, shall declare and lay open to the jury all andsingular the matters and evidences whereby they think theymay be able to inform the court concerning the point inquestion, after which each of the parties has a liberty toproduce before the court all such witnesses as they please1'-in short, trial by jury is taking that form in which we now-adaysknow it, the jurors try questions of fact. Still, inFortescue's book the change is not yet perfect, he sometimesspeaks of the jurors as though they were witnesses-they aredrawn from the district in which the events took place, inorder that they may bring their own knowledge to bear uponthe question ; if they give a false verdict they are liable to beattainted, the case can be tried over again by twenty-fourjurors, and if the new verdict contradicts the old, the firstjury of twelve is very severely punished. In civil cases thismode of trial has become almost universal, though there arestill certain cases respecting property in land in which trialby battle can be claimed, and there are some other cases inwhich recourse is still had to compurgation.The commonest procedure in civil cases involves the useof two juries, an indicting and a trying jury, or, as we say,a grand and a petty jury. The grand jury is a body oftwenty-three persons representing the county, sworn to presentcriminals. In the past the theory has been that such a jury

212 Coutstitutioga Z History PERIODaccuses men of its own knowledge, and, even in our own day,this form is preserved-an indictment even in our own daystates that the jurors say upon their oaths that A, of maliceaforethought did slay and murder B. As a matter of fact,however, what happens now is this-and we may perhapscarry back the change as far as Henry VII's day-someperson who believes that A has committed a crime goesbefore the grand jury and profers a bill of indictment, adocument stating that A has murdered B. The grand jurorshear the evidence for the prosecution, and if they think thatthis makes it probable that A is guilty, then without hearingany evidence for the defence they write on the bill 'a truebill,' and then A has to take his trial before a petty jury; if,however, they think that there is no ground for suspicion, theywrite ' no true bill '-the old phrase was ' Ignoramus '-weknow nought of this-the bill is said to be ignored, and A goesfree, though he is liable to be indicted another time for thesame offence:-he has had no trial, and is not acquitted. Amajority of the body of twenty-three grand jurors decideswhether the bill shall be ignored or no. So much as to thegrand jury.In the present day, a person who has been indicted must,as a matter of course, stand his trial before a petty jury ; he istried, as we all know, by a jury of twelve, and the jurors arejudges of fact-their verdict is based on the evidence ofwitnesses given before them in court. But in Henry VII'sday this was not quite the case-an indicted person was nottried by jury unless he consented to be so tried, but thisconsent was extorted from him by torture, by thepeine forteet dure. If, when asked 'how will you be tried?' he refused tosay ' By God and my country,' if (as the phrase went) he stoodmute of malice, he was pressed under heavy weights until heeither died or said the necessary words. So late as 1658a man was pressed to death, so late as 1,726 a man was pressedinto pleading, not until 1772 was the peine forte et dzweabolished. This horrible process was a reminder that trial byjury was not native to English law-there had been a timewhen to convict a man of crime without allowing him toappeal to God by means of battle or ordeal, had seemed animpossible injustice. The reason why men were found hardyAHeaZs and Indict fnentsenough to submit to the terrible torture of being pressed todeath, instead of escaping with a mere hanging, was this, thatif they were convicted they forfeited lands and chattels, ifthey died unconvicted there was no forfeiture, and thus theirfamilies were not ruined.Another point that we may note is that before Henry VII'sday the law had come to demand unanimity of the jurorsunlessthe twelve agreed there could be no verdict. This rule,as we all know, prevails at the present day; but it onlybecame fixed in the course of the later Middle Ages; itcertainly looked at one time as if the law would be contentwith the verdict of a majority.We have already seen that procedure by indictment hadonce been a novelty in English law-a novelty introduced byHenry I1 : it had taken its place beside the older procedureof an appeal by the party wronged1. In Henry VII's day thisolder alternative still existed, and was still in use-the appelleecould either claim trial by battle, or submit to trial by jury.Trial by battle was, however, becoming very unusual. Appealswere not, however, abolished until 1819: their abolition wasdue to the fact that in 1818, in the celebrated case of Ash]bra'v. Thornton, an appeal was brought, and the appellee claimedtrial by battle-the appellor refused to fight.It is necessary, in order to explain what follows, to understandthat before the end of the Middle Ages trial by jury hadtaken a deep root in the English system, and had alreadybecome the theme of national boastings. Fortescue contrastsit favourably with the procedure of the French courts, wherethere was no jury, and where torture was freely employed.It is a very curious point in European history, that an institutionwhich was once characteristically Frankish, became, incourse of time, peculiarly English, and underwent, withoutlosing its identity, the great change which turned the bodyof neighbour-witnesses into judges of the evidence given byother witnesses.But to return to the courts-we have yet to speak of thejudicial functions of the parliament, of the king in parliament.In this sense 'the king in parliament' comes to mean the House

Constitutiozznl Historyof Lords. In the fourteenth century, as we have already seen,we must regard the presence in parliament of representativesof the commons as something new. These newcomersgradually improve their position, they will not be meregranters of taxes, they claim to share in deliberation and inlegislation. But now we have to note that they never obtain,hardly attempt to obtain, any share in the judicial work whichfrom of old had been done by the king in the assembly ofprelates and barons. The jurisdiction of the king in parliamentremains the jurisdiction of the king with his prelatesand barons ; in other words, since the king does not himselftake part in judicial proceedings (in the fourteenth century,to say the least, it is most unusual for him to do so, in thefifteenth century, as we learn from Fortescue, it is thoughtdistinctly improper that he should do so), the jurisdiction ofthe king in parliament has come to mean the jurisdiction of .the House of Lords. This we find is of three kinds.(i) The House of Lords acts as a court for the trial ofpeers accused of treason or of felony. Of this we have saidsomething already1. If the parliament be not sitting, the peeris tried by the Lord High Steward, assisted by a body of peerschosen by him. Very probably it is because this work oftrying peers was one very principal field for the jurisdiction ofparliament, that the commons took no part in the judicialwork. At any rate, in I 399 the commons, fearing perhaps thatthey might be called in question touching some of the veryirregular proceedings of Richard's reign, protested solemnlythat they had no part in judicial work-the judgment ofparliament was the judgment of the king and the lords ; thisprotest established a permanent principle.(ii) We have what is called the jurisdiction in error, thejurisdiction of the king and parliament as a court of error,a court which could correct the errors in law of all lowercourts. This we may trace back far-the last resource forroyal justice was the king surrounded by the magnates of therealm. We find it settled in the fifteenth century as a jurisdictionto correct errors in matters of law, as contrasted withmatters of fact. The notion of trying the same facts twiceover, except by attainting the jury, is quite foreign to our1 See pp. 169--171.11 Jlc~isdiction of the House of Lords 2 I 5medieval law-but if the king's courts of common law makeerrors in law, it remains for the House of Lords to correctthose errors. During the fourteenth century this jurisdictionseems to have been freely used, but for some reason oranother, not very easy to understand, it went out of use inthe fifteenth century. Between Henry V and James I thereare hardly any known cases of error being brought before thelords: however, this procedure, though for a time disused, hada great future before it, as we shall see hereafter.(iii) The parliament, that is to say, the lords, had graduallyabandoned all attempt to act as a court of first instance incriminal or civil cases, save when a peer was to be tried forfelony or treason-but to this there was one great exception.They had entertained accusations both against peers andagainst commoners when preferred by the commons. Suchaccusations preferred by the commons to the lords came to beknown as impeachments. The first case of what can definitelybe called an impeachment, occurs in the Good Parliament of1376; Lord Latimer, the king's chamberlain, and one Lyons,were impeached. In 1386 we have the impeachment of theDuke of Suffolk ; some other cases follow rapidly during thetroubled reign of Richard 11. A few more cases followed, justsufficient to establish the outlines of a procedure-the last isin 1459. After this there is a long break from 1459 until thisancient weapon was furbished for a new use in 1621 ; duringthe interval parliaments were hardly in a position to impeachthe king's ministers, for it was as a check upon the king'sministers that the impeachment was chiefly valuable, and cameto be afterwards valued ; smaller offenders could be left totheir fate in the ordinary courts.One other parliamentary process remains to be noticedbutit must be carefully distinguished from an impeachment-I mean an act of attainder or of pains and penalties. Astatute, we say, can do anything-such acts as I have justmentioned are statutes, acts of parliament for putting a manto death, or otherwise punishing him without any trial at all.It is not a judicial act, it proceeds with the legislative authorityof king, lords and commons. At the Coventry parliament of1459 the Yorkist lords were attainted. Two years afterwards

Cogzstitutionn Z Historythe turn for the Lancastrians comes, and Henry VI, his wife,and a large number of his supporters are attainted. In 1477the Duke of Clarence was attainted-these were miserableprecedents, acts of anarchy and of revenge. It was underHenry VIII, who could obtain anything from parliament, thatthe act of attainder came into common use: of this hereafter.But distinguish such an act, a statute passed by king, lords andcommons, without any trial, without any judicial formalities,from the trial before the House of Lords of a person who hasbeen impeached, i.e., formally accused by the commons.We have yet to speak of the jurisdiction of the king'scouncil, a matter with which it is difficult to deal, because itwas constantly the subject of bitter controversy. We haveseen that in Edward 1's time the council exercised a jurisdiction,which it is somewhat difficult to mark off from that of theparliament ; the two work together so harmoniously that thecouricil at times seems a standing committee of the parliament,or the parliament a particularly full and solemn meeting of thecouncil. But this harmony is soon dispelled : throughoutthe fourteenth century there is constant conflict between thecouncil and the parliament, and the latter seeks time aftertime to set limits to the judicial functions of the former.We may distinguish three different kinds of jurisdiction,(I) the power to correct the errors of the ordinary courts oflaw, (2) an original jurisdiction, jurisdiction as a court of firstinstance in criminal cases, (3) an original jurisdiction in civilcases.(I) The first of these has the shortest history. Thefunction of correcting the errors in law of the ordinary courtsof law became definitely the function of the parliament (i.e., aswe have seen, of the House of Lords), and the council had toforego it. In 1365 we have a case in which the judges of theCourt of Common Pleas refused to pay any heed to thereversal by the council of a judgment of the justices ofassize-the council, they said, is not a place in which judgmentscan be reversed1. Again in 1402 we have a statute(4 Hen. IV, c. 23) which shows that the council had beencalling in question the judgments of the lower courts, hadYeal-books, vol. 111, 39 Edw. 111, f. 14.yztrisdiction of the Coztncilnot been regarding them as final-it is therefore ordainedthat after judgment the parties shall be in peace, until thejudgment be reversed by attaint or by error. However,without interfering with judgments already delivered, thecouncil had a wide field of action, and it is over its jurisdictionas a court of first instance that controversy rages.(2) Already in 1331 parliament attempts to put a stop tolegal proceedings, other than those in the ordinary courts oflaw. It is enacted (5 Edw. 111, c. g) that no man is to beattached by any accusation, nor forejudged of life or limb, norhis lands, tenements, goods or chattels seized into the king'shands, against the form of the Great Charter and the law ofthe land. In 1351 we have a second statute (25 Edw. 111,stat. 5, C. 4): ' None shall be taken by petition or suggestionmade to our lord the king, or to his council, unless it be byindictment or presentment of good and lawful people of thesame neighbourhood, where such deeds be done in due manneror by process made by writ original at the common law; andnone shall be put out of his franchise or his freehold, unlesshe be duly brought in to answer, and forejudged of the sameby the course of the law.' Then again in 1354 (28 Edw. 111,c. 3), 'no man of what estate or condition that he be, shallbe put out of land or tenement, nor taken, nor imprisoned,nor disinherited, nor put to death without being brought inanswer by due process of law.' In I 363 and 1364 we haveother statutes (37 Edw. 111, c. 18; 38 Edw. 111, c. 9,) whichdenounce punishment against persons who make false suggestionsto the king, statutes which seem to be aimed at thejurisdiction of the council. Then again in I 368 (42 Edw. I I I,c. 3) we have the old story-it is established that ' no man beput to answer without presentment before justices, or matterof record, or by due process and writ original according tothe old law of the land.' But all these statutes which seemdevised to curb the council, and to sanction the procedure ofthe common law courts, indictments and original writs, as theonly legal procedure, have apparently but little immediateeffect. Under Henry IV and Henry V the commons are stillpetitioning against the jurisdiction of the council; but theking does not assent to their petitions. They then become

Constitz~tional Historysilent; and it would seem that under the constitutional ruleof the Lancastrian house, the jurisdiction of the council wasnot oppressively exercised. The series of statutes at whichwe have glanced remained unrepealed, if disregarded, duringthe whole of the Tudor period. They became of vastimportance under the Stuarts, for they were the base for thecontention that the Court of Star Chamber was no legaltribunal.Still the convenience of a tribunal which was not bounddown to a formal procedure (and we must remember thatthe procedure of the common law courts was extremely formal)made itself apparent from time to time, and we find parliamentadmitting that the council has a certain sphere ofjurisdiction. This we may see in several different quarters.In I 35 I parliament began its course of anti-Roman legislation;we have those statutes of Provisors and of Praemunire, whichplay a large part in the history of our church, statutesdirected to excluding the interference of the Pope withEnglish benefices. In 1363 (38 Edw. 111, stat. 2, c. 2) wefind parliament ordaining that persons who offend againstthese statutes are to answer for it before the council, and tobe punished according to the discretion of the council. Lordsand commons are in great earnest about this matter, and aretherefore quite content that justice shall be done rapidly andwithout any dilatory formalities. In 1388 parliament is sovery desirous that justices shall hold their quarter sessions forthe enforcement of the statutes of labourers, that it (12 Ric. 11,c. 10) enacts that if justices do not hold sessions they are tobe punished according to the discretion of the king's council.In 1453 we find a temporary but very severe act (31 Hen. VI,c. 2), passed after Jack Cade's insurrection, which fully admitsthe lawfulness of writs directing persons guilty of riots,oppressions and extortions, to appear before the council.Contempt of such writs is to be severely punished by forfeiture;this is to endure for seven years. A more generaladmission we find in certain articles for the council of theinfant king agreed to by parliament in 1430-all petitionsto the council dealing with matters determinable by thecommon law are to be sent to the common law courts, unlessthe discretion of the council feel too great might on the oneside, too great unmight on the other, or else other reasonablecause that shall move them1.If we place ourselves at the accession of Henry VII, andask ourselves whether the criminal jurisdiction of the councilwas legal, we shall find it hard to come by a very definiteanswer. On the one hand there were statutes unrepealedwhich might be read as condemning it entirely. Our lawknows not now, and knew not then, any such principle as thatstatutes can grow obsolete-a statute once enacted remains inforce until it is repealed. Still it is a hard thing to pronounceillegal that which parliament and the great mass of the nation,including probably the judges, regard as legal ; and it seemsprobable that at Henry's accession this was true of the council'sjurisdiction. It was generally admitted that it could punishthose offences which the courts of common law were incompetentto punish, offences falling short of felony (the councilseems always to have shrunk from pronouncing the penaltyof death) in particular, offences which consisted in aninterference with the ordinary course of justice, riots, briberyof jurors, and so forth. It was, I think, felt that there weremen who were too big for any court but the council: theywould bribe jurors and even judges. The statutes to whichwe have referred were, we may say, protests in favour of trialby jury-but there are other statutes which show very plainlythat trial by jury often meant the grossest injustice: therewere men whom no jury would convict. This, I think, wasadmitted, and the remedy was seen in a reserve of extraordinaryjustice to be found as of old in the king and hisimmediate advisers, justice which could strike quickly and nothave to strike again, justice which could strike even the mostpowerful offenders.It is with this in our minds that we approach the statuteof 1437 (3 Hen. VII, c. I), which has been regarded as creatingthe Court of Star Chamber. It recites that certain offencesare very common, riots, perjury, bribery of jurors, misconductof sheriffs and some others of the same class ; then it empowersNicolas, P~*oreedings and Ordinances qfthe Privy Cozmcil IV, 61, § I I I.

220 Constit utiona Z History PERIODthe chancellor, treasurer, and keeper of the privy seal, callingto them a bishop and a temporal lord of the council, andthe two chief justices or other two justices in their absence,to call before them persons accused of these offences toexamine them, and to punish them according to their demeritsas they ought to be punished, if they were thereof convict indue order of law. The statute says nothing of the StarChamber; but for a long time past a room in the palace ofWestminster bearing that name had been commonlyused bythecouncil for its judicial sessions. It names, we observe, certainparticular offences-and it names certain persons who are tohear the charges and punish the offenders. Now, in latertimes (of this we shall have to speak again) we find a tribunalwhich is known as the Court of Star Chamber; it is notexactly constituted on the lines marked out by the statute ofHenry VII, and it does not confine itself to the offencesmentioned in that statute. It consists apparently of the wholecouncil, or of a committee of the council, and must havegenerally comprised all or most of the officers mentioned inthe statute : chancellor, treasurer, keeper of the privy seal, twojudges, one temporal lord of the council and one bishop ; andthough it does punish the offences mentioned in the statute,still 'it punishes many other offences as well-in short, itexercises a very comprehensive penal jurisdiction, practicallyan unlimited jurisdiction, or limited only by this, that it doesnot attempt to inflict the penalty of death. Under the Stuartswe have bitter controversy as to the legality of this court:if on the one hand it is regarded as created by the Act of1487, then it habitually exceeds the powers which wereentrusted to it by parliament: if on the other hand it beregarded as exercising a jurisdiction inherent in the king'scouncil, then it may well be argued that it acts in directdefiance of those unrepealed statutes of Edward 111's reign, ofwhich we have already spoken1.To this point we must come back hereafter; let us nownotice that Henry VII and his successors have ready to theirhands a most efficient engine of government. The same bodyReference may now be made to Leadam, Select Cases in the Star Chamber(Selden Society) 1902.I I The Star Chamber 22 Iwhich issues ordinances, which controls the execution of thelaw and the administration of the state, acts also as a courtof justice with a comprehensive penal jurisdiction-one dayit can make an ordinance, and the next punish men for notobeying it. Its jurisdiction it exercises without any lengthyformalities-there is no trial by jury before it-the accusedperson is examined on his oath, a procedure quite strange tothe courts of common law, in which (as the phrase goes) noonecan be compelled to accuse himself. And it uses torture.Fortescue, the Lancastrian chief justice, to whose writings wehave more than once referred, speaks of torture as foreign toEnglish law-this is one of the respects in which he extolsthe English law at the expense of continental law1. But inEdward IV's reign torture begins to make its appearance ; wehear of it in 1468. It never becomes part of the procedure ofthe ordinary courts, but a free use is made of it by council,and the rack becomes one of our political institutions. Thejudicial iniquities of Edward IV's reign are evil precedentsfor his successors.(3) We have been speaking in the main of the penal orcriminal jurisdiction of the council. But it had exerciseda civil jurisdiction as well, and this has a history of its own.If in one direction we see the power of the council representedby the Court of Star Chamber, in another we see it representedby the Court of Chancery.We must go back a little way. Ever since the NormanConquest every king has his chancellor, who has the custodyof his great seal, and is at the head of the whole secretarialbody of king's clerks. When at the end of Henry 111's reignthere ceases any longer to be a chief justiciar, the chancellorbecomes the king's first minister. Robert Burnel1,the chancellor,is Edward 1's chief adviser. The chancellor is almost alwaysan ecclesiastic-there are a few instances of lay chancellorsin the fourteenth century-generally he is a bishop. In manydifferent ways he has for a long time past been concernedin the administration of law. In the first place it has beenhis duty, or that of his clerks, to draw up those royal writs(original writs) whereby actions are begun in the king's courtsDe L~nua'zdzrs Lepm Afzglzae c. xxi.

222 Const it utionad k?istory PERIODof common law. He has also had some judicial powers ofhis own-in particular, if it be asserted that the king hasmade a grant of what does not belong to him, it is for thechancellor to hear the matter, and if need be to advise theking to revoke his grant. Then again he has always beena member of the king's council, and what is more, the speciallylearned member-that he should be acquainted with canonlaw and Roman law, as well as with the common law ofEngland, was very desirable. Naturally then if questions oflaw came before the council, the chancellor's opinion wouldbe taken.As the fourteecth century goes on we find that a gooddeal of civil litigation comes before the council in one wayand another. Persons who think themselves injured and whothink that, for some reason or another, they cannot get theirrights by the ordinary means, are in the habit of petitioningthe king, asking for some extraordinary relief. We mustremember that besides the ordinary writs whereby actionsat law were begun, writs which were obtained from theChancery as a matter of course upon payment of the fixedfee, there was a certain power reserved to the Chancery ofmaking new writs to suit new cases, of introducing modificationsin the established forms. Sometimes the relief whicha petitioner desired was of this kind ; at other times hewanted more than this-he wanted that the council shouldsend for his adversary and examine him up011 oath. Variousexcuses for the king's interference are put forward-the suppliantis poor, old, sick ; his adversary is rich and powerful,will bribe or intimidate the jurors, or has by accident or trickobtained some advantage of which he cannot be deprivedby the ordinary courts. The tone of these petitions is veryhumble, they ask relief for the love of God and that peerlessPrincess his Mother, or for His sake who died on the RoodTree on Good Friday. A common formula is-for the loveof God and in the way of charity. Thus the petitioneradmits that strictly speaking he is not entitled to what he. -asks-he asks a boon, a royal favour1.1 Select Cases in Chancery (A.D. 1364-1471)~ ed. for the Selden Society byW. P. Baildon, 1896.11 The Chancellor's EquitableJzzrisdz'ction 223Now the series of statutes and petitions of parliament, towhich we have already refefred, seems to have been directedquite as much against the interference of the council in civillitigation as against its assumption of criminal jurisdictiontheview of parliament is that the courts of common law aresufficient. Gradually, in the fifteenth century, the councilseems to have abandoned the attempt to interfere with casesin which there was a question which the courts of commonlaw could decide, but it became apparent that there werecases in which no relief at all could be got from these courts,and yet cases in which according to the ideas of the timerelief was due. I cannot say very much about this matterwithout plunging into the history of private law-still somethingought to be said. It had for many reasons and inmany cases become a common practice for a landowner (A)to convey his estate to some friend (B), upon the understandingthat though that friend (B) was to be the legalowner of it, nevertheless (A) was to have all the advantagesof ownership:-B was then said to hold the land 'to theuse of A, or upon trust or in confidence for A.' This dodge,for such we may call it, was employed for a variety ofpurposes. Thus, for example, A has some reason to believethat he will be convicted of treason-during the Wars ofthe Roses many persons must have regarded this as highlyprobable-he desires to prevent his land being forfeited, hedesires to provide for his family :-he conveys his land to Bupon the understanding that B is to hold it upon trust for, orto the use of, him, A. Then A commits treason,-there is noland to be forfeited-the land is B's and B has committed nocrime-still B is in honour bound to let A's heir have the useand enjoyment of the land. The same device was used forthe purpose of evading the feudal burdens; the same devicewas used for defrauding creditors-the creditor comes to takeA's land and finds that it is not A's but B's. The same devicewas largely used by the religious houses in order to evade thestatutes of mortmain ; they were prohibited from acquiringnew lands-but there was nothing to prevent a man conveyingland to X to be held by him upon trust for the monastery.The credit or blame of having invented these uses, or trusts,

Co?zstitutionnl Historyis commonly laid at the door of the religious houses. At anyrate, in the early part of the fifteenth century this state ofthings became very common: B was the legal owner of theland, but he was bound in honour and conscience to let Ahave the profit of it and to do with it what A might direct.His obligation was as yet one unsanctioned by law-thecourts of conlmon law had refused to give A any remedyagainst B; they would not look behind B; B was the ownerof the land and might do what he pleased with it regardlessof A's wishes.By this time (we are speaking of the early part of thefifteenth century) it had become so much the practice forthe king's council to refer all petitions relating to civil cases tothe chancellor-the king's chief legal adviser-that petitionerswho wanted civil relief no longer addressed their complaintsto the king, but addressed them to the chancellor, and thechancellor seems to have commonly dealt with them withoutbringing the matter before the king and council. Now thisdevice of ' uses, trusts or confidences ' of which we have justspoken provided the chancellor with a wide and open fieldof work. In Henry V's reign we find that the chancellorwill enforce 'a use' (as it is called)-if I3 holds land to theuse of A, the chancellor on the complaint of A will compelB to fulfil the understanding, will compel him to deal withthe land as A directs-will put him in prison for contemptof court if he refuses to obey the decree :-though B is legallythe owner of the land, it is considered unconscionable, inequitable,that he should disregard the trust that has beenput in him-the chancellor steps in, in the name of equityand good conscience. No doubt this was convenient ; if thechancellor had not given help, in course of time the commonlaw courts would probably have had to modify their doctrinesand to find some means of enforcing these 'uses.' But thecommon law was a cumbrous machine, and could not easilyadapt itself to meet the new wants of new times. On theother hand the chancellor had a free hand, and it is by nomeans impossible that for a long time past the ecclesiasticalcourts (and the chancellor was an ecclesiastic) had beenstruggling to enforce these equitable obligations. At anyGrowth of Epuityrate when once it had become clear that the chancellor waswilling and able to enforce them, a great mass of businesswas brought before him. It was found highly convenient tohave land 'in use.' Parliament and the common lawyers donot like this equitable jurisdiction of the chancellor-sometimesthey plan to take it away and to provide some substitute-but it justifies its existence by its convenience, and in thereign of Henry VII we must reckon the Court of Chanceryas one of the established courts of justice, and it has anequitable jurisdiction; beside the common law there is growingup another mass of rules which is contrasted with the commonlaw and which is known as equity.The establishment of such a system of rules is an affairof time. Of the equity of the fifteenth century, even of thesixteenth, we know but little, for the proceedings in thechancery were not reported as those of the common lawcourts had been ever since the days of Edward I. But thisfact alone is enough to suggest that the chancellors did notconceive themselves to be very strictly bound by rule, thateach chancellor assumed a considerable liberty of decidingcauses according to his own notions of right and wrong.Probably, however, the analogies of the common law and theecclesiastical jurisprudence served as a guide. In course oftime (this belongs rather to a subsequent stage of our historybut should be mentioned here) the rules of equity became justas strict as the rules of common law-the chancellors heldthemselves bound to respect the principles to be found in thedecisions of their predecessors-a decision was an authorityfor future decisions.Thus it came about that until very lately, until 1875, wehad alongside of the courts of common law, a court of equity,the Court of Chancery. I shall attempt to describe hereafterthe sort of thing that equity was in the present century beforethe great change which abolished all our old courts and thesort of thing that it is at this moment. We are now dealingwith past time and must think of the chancellors as havingacquired a field of work which constantly grows. They are supplementingthe meagre common law, they are enforcing dutieswhich the common law does not enforce, e.g. they are enforcing

226 ~o~stz'twtio~a Z HistoryPERIODthose understandings known as uses or trusts, and they aregiving remedies which the common law does not give, thus ifa man will not fulfil his contract, all that a court of commonlaw can do is to force him to pay damages for having brokenit-but in some cases the Chancery will give the more appropriateremedy of compelling him (on pain of going toprison as a contemner of the court) to specifically performhis contract, to do exactly what he has promised. Then againthe procedure of the Court of Chancery differed in manyimportant respects from that of the courts of law; in particular,it examined the defendant on oath, it compelled him to disclosewhat he knew about the facts alleged against him. Popularthe Court of Chancery never was, but the nation could notdo without it-and so gradually our law acquired what forcenturies was to be one of its leading peculiarities; it consistedof a body of rules known as common law supplemented by abody of rules known as equity, the one administered by theold courts, the other by the new Court of Chancery.D. General Characteristics of E~zgLish Lazu.As time does not permit me to carry out the whole of myplan, I will this morning take notice of a few miscellaneouspoints which are of some importance1. And, in the first place,I turn to criminal law in general and the law of treason inparticular.At the head of all crimes stands high treason. In 1352this crime was defined by a very famous statute. It recitesthat there had been doubts as to what was treason andproceeds to declare that treason is : if any compass or imaginethe death of the king, his wife or their eldest son and heir, orviolate the king's wife or his eldest unmarried daughter, orlevy war against the king in his realm or be adherent to hisenemies in his realm, giving to them aid and comfort in hisrealm or elsewhere, and if this shall be provably attainted bymen of his [the accused person's] own condition. And if aman counterfeit the king's great or privy seal or his money,or bring false money into the realm, or slay the chancellorFor the omitted topics see Analysis, p. xvii.I I Treason 227treasurer, or justices of the one bench or the other, justices' being in their place doing their offices.' Omitting the rarercases we may say that there are three main modes of treason:(I) imagining the king's death, i.e. forming an intention tokill the king and displaying this intention by some overt act,(2) levying war against the king, (3) adhering to the king'senemies. From 1352 to the present day this statute hasformed the basis of the law of treason. However, in everytime of political disorder new treasons have been created,which generally have been abolished when the danger haspassed away. Thus in I 397, at the troubled close of Richard 11'sreign, it was made treason not merely to compass the deathof the king, but to compass to depose him. Two years afterwards,when the House of Lancaster had succeeded to thethrone, this statute was repealed. So in 1414 it was madetreason to kill or rob persons having the king's safe-conduct ;but this was repealed in 1442. No other new treason wascreated by statute during the fifteenth century; but the judgeswere discovering that the words of the Act of Edward 111could be stretched. Then with the Reformation we ha;e newstatutory treasons: nine Acts of Henry VIII create newtreasons-four directed against the supporters of the pope,five devoted towards maintaining the royal succession as itstood after the king's various marriages :-thus it was madetreason to publish and pronounce by express writing or wordsthat the king is an heretic, schismatic, tyrant, infidel or usurper;obstinately to refuse the oath abjuring the papal supremacy ;to imagine to deprive the king of his title as supreme headof the church ; to assert the validity of the king's marriagewith Anne of Cleves. At the beginning of the next reign(I 547) all these new treasons were swept away-but some newones were created-in 1549 it was made treason for twelveor more persons to make a riot with intent to kill, take orkill any of the Privy Council. Then these were abolished inMary's reign : but some new treasons were created, thus it wastreason if any by express words shall pray that God wouldshorten the queen's life-or to affirm that Philip ought not tohave the title of king jointly with the queen. Under Elizabeth,again, there were some new treasons, as for any Jesuit born in

Constitutions Z Historythe queen's dominions to remain in the realm. But all alongthe statute of 1352 remained the normal measure of treason.It was discovered, however, that its words were elasticenough. We have some extraordinary stories, for the truthof which I cannot vouch, of what under Edward IV was heldtreason by imagining the king's death. Thus Walter Walker,dwelling at the sign of the Crown, told his little child that ifhe would be quiet he would make him heir to the Crownthiswas treason. Thomas Burdett had a white buck in his .park, which in his absence was killed by Edward IV whenhunting ; Burdett expressed a wish that the buck were, hornsand all, in the belly of him who counselled the king to do itthiswas treason, though Markham, C. J., refused to be a partyto so iniquitous a judgment1. Whether these stories be true orno, it certainly became established doctrine under the Tudorsthat an attempt manifested by some overt act to depose theking, or compel him by force to govern in a particular way, isan imagining of the king's death. In the case of Lord Essex,in 1600, the judges declared that in case a subject attempts toput himself into such strength that the king shall not be ableto resist him, and to force and compel the king to governotherwise than according to his own royal authority anddirection, it is manifest rebellion, and in every rebellion thelaw intendeth as a consequence the compassing the death anddeprivation of the king, as foreseeing that the rebel will neversuffer the king to live or reign who might punish or takerevenge of his treason or rebellion. So again the term ' levywar against the king' was extended so as to include riots forpolitical objects; thus Coke holds that it is treason to assemblefor the purpose of pulling down not this or that enclosure, butenclosures generally, and in the seventeenth century (1668) ariot for the purpose of pulling down brothels was held to betreason. Thus by the process of interpreting the statute ofI 352 what came to be known as ' constructive treasons ' werecreated. For the most part these interpretations remain lawat the present day ; it has become unusual to put this part ofthe law in force, riots are generally punished under statutesStow's Chronicle, p. 430.F~nlason, vol. 111, p. 32 note.See also Reeve, History of Enghsh Law, ed.merely as riots-but still in the main the so-called constructivetreasons are still treasons.One measure of improvement had been passed. A statuteof 1552 (5 and 6 Edward VI) required that in cases of treasonthere should be two witnesses, who are to testify before theaccused-our law had no such provision for the case of othercrimes and has not at the present day.Another statute of some importance was passed in 1494(I I Hen. VII, c. I) : this provides in substance that obedienceto a king a2 facto who is not also king dejzcre shall not after arestoration expose his adherents to the punishment of treason.This act carries on its face the stamp of the Wars of theRoses. It became of some importance in after times: it issaid that Oliver Cromwell's supporters pressed him to acceptthe crown in order that they, in case of a restoration, mighthave that protection which this statute gives to those whoobey a de facto king-obedience to a lord protector was notwithin the statute1.Next below treason stand the felonies. These consist(I) of the common law felonies, which consist of those crimeswhich had been considered as peculiarly grave at the timewhen our common law first took shape in the thirteenth century:homicide, arson, burglary, robbery, rape and larceny.Broadly speaking we may say that they were capital crimes,save petty larceny, stealing to less value than 12d. And(2) of certain crimes which have been made felony bystatute-and which also are punishable by death. But inthe course of the sixteenth century a new line is drawnthrough the felonies-some are clergyable, others are unclergyable.To go back for a moment to remote times:Henry I1 had failed in his attempt to bring the clergy underthe ordinary criminal law of the realm. The clerk foundguilty of crime could only be handed over to the bishop, whowould do no more than degrade him from his orders. Owingperhaps to the excessive severity of the law, the doctrine gotestablished that anyone who could read was a clerk: and thusany man who could read could commit felony with impunityReference may also be made to Hallam, Constitutional Htstory, vol. rrr,c. xv, and to Stephen's Hzstory of Cri?ninal Law, vol. 11, c. 23.

230 Constitutions l HistoryPERIOD-women had no such immunity. As the Reformation approaches,statutes begin to interfere with this state of things.In 1496 a statute (12 Hen. VII, c. 7) deprived all but ordainedclerks of benefit of clergy, in case of wilful murder. Otherstatutes follow which take away clergy from all men inparticular cases-thus in I 536 certain piratical offences, inI 547 highway robbery, horse-stealing, stealing from churches,in 1576 rape-and so forth, and thus felonies are divided intotwo classes known as clergyable and unclergyable. Thenagain under an act of 1487 it .was provided that a personnot really in orders should have his clergy but once, andshould be branded in the thumb, so that the fact of hisconviction might be apparent. In 1622, just at the end ofour period, women for the first time obtained a privilegeequivalent to the benefit of clergy.Below the felonies again stand the misdemeanours-minorcrimes not punished with death, but punished in general byfine and imprisonment. Some are misdemeanours by commonlaw; many are the outcome of statute. The term misdemeanouris gradually appropriated to describe these minorcrimes. In the older books we find them called trespassesbut,as time goes on, trespass is the term appropriated tocivil wrongs, while misdemeanour is appropriated to crimesnot amounting to felony. The same act may be bothtrespass and misdemeanour; thus if A assaults B, this is atrespass against B, he can sue A for it in a civil court andrecover damages, but also it is a misdemeanour; A can beindicted for it before a criminal court, and can be punishedfor it by fine or imprisonment, or both; the same act hascivil consequences and penal consequences, it is a cause forcivil action and also a punishable offence.Treason, felonies, and misdemeanours are all indictableoffences-every indictable offence falls under one of these threeheads. Of criminal procedure we have already said something-theaccused person is indicted by a grand jury andtried by a petty jury. The old procedure by way of appealis fast dying out. In case of misdemeanour, but not of felonyor treason, a person might be put upon his trial before a pettyjury without any indictment by a grand jury, in case theI I Petty Ofences 23 Iking's attorney-general took up the case and filed what iscalled a criminal information. The origin of the criminalinformation is still obscure-it was occasionally employedunder the Stuarts for the prosecution of political misdemeanours.The king's attorney-general informed the Court ofKing's Bench that the accused person had committed a crime,and then that person was subjected to trial before a pettyjury. This was the procedure used in the famous case ofSir John Eliot, which will come before us hereafter.An indicted person was not allowed to make his defenceby counsel, and only by degrees was he gaining the powerof calling witnesses to give evidence in his favour. In criminalcases the theory that the jury were witnesses had not entirelygiven way before the theory that they were judges of facttheprisoner seems at all events to have had no powerto compel unwilling witnesses to come and testify in hisfavour.Then again below these indictable offences there wasspringing up a class of pettier offences, for which no generalname had yet been found, offences which could be punishedwithout trial by jury by justices of the peace. As yet theydid not attract the attention of lawyers, and it is only in theeighteenth century that their number becomes considerable.However, from time to time a statute created such an offence-they were all of statutory origin: the justices of the peacethemselves were of statutory origin. Thus taking up thestatute book of James I, the following cases meet our eyehewho is guilty of tippling in an ale-house is to be fined tenshillings, the offence being proved by the oath of twowitnesses beforc any one or more justice or justices of thepeace ; then, again, in 1604 we have a severe game law : it ismade penal for persons who have not a certain amount ofwealth to keep a greyhound or a setter-he who offends canbe sent to gaol for three months on the offence being provedby two witnesses before two or more justices of the peaceandso forth. Parliament has undertaken to regulate diverstrades and industries in a very elaborate way, and a breachof these regulations is often made an offence for which theoffender can be subjected to a small fine or a short term

232 Co?zstitationad History PERIODof imprisonment by justices of the peace without any trialby jury. In short, what we in our day know as offencespunishable upon summary conviction, as contrasted with indictableoffences, are becoming not uncommon.The justices of the peace have by this time become veryimportant persons. They are attracting attention, and booksare written about their duties, in particular that excellentbook, Lambard's Eirenarciza. For every shire a number ofcountry gentlemen are appointed justices of the peace by theking. The boroughs are often pfivileged by their charters toelect their own justices-sometimes the county justices haveno jurisdiction over the borough, sometimes the county andborough justices have a concurrent jurisdiction : this dependson the wording of the borough charters. The duties of thejustices have by this time become very miscellaneous. In thefirst place, four times a year they hold sessions of the peacefor the county-quarter sessions-and there they exercise ahigh criminal jurisdiction : they can try almost all offenders:they try with a petty jury those who are indicted by a grandjury. In the second place, out of quarter sessions theyexercise those statutory powers of summary trial of smalloffences of which I have just spoken. In the third place, wefind already the germs of another function which has becomevery important in our own day, namely, the preliminaryexamination of prisoners accused of indictable offences. Wenow are accustomed to see a person accused of crime takenbefore a magistrate, who either commits him to prison untiltrial, or lets him out on bail until trial, or, holding that thereis no case against him, dismisses the charge. The preliminarytrial, for such we may call it, before the justice of the peacehas grown up slowly-but we can see the germs of it in the sixteenthcentury. Ever since their institution in Edward 111'sreign the duty of seeing to the arrest of suspected personshas been passing out of the sheriff's hands into the hands ofthe justices-it is for the justices to bail the prisoner if by lawhe be entitled to bail, or to commit him to prison. Then actsof 1554 and I 555 directed the justices to examine the prisonerand his accusers, to put the examination into writing, andsend it to the court before which the prisoner was to standI I Dzzties of the Jastices 233his trial. However, we must not suppose that this examinationwas very like that to which we are now accustomed. Theobject of it is not to hold an impartial inquiry into the guiltor innocence of the prisoner, and to set him free if there isno case against him, but rather to question him and to get upthe case against him ; the justice of the peace here plays thepart rather of a public prosecutor than of a judge. Fourthly,the justices of the peace have acquired a control over theconstabulary of the county. Arrests are now generally madenot by the hue and cry as in old times, but by constableswho are often empowered to make the arrest by warrantsissued by the justices. The validity of such warrants is inCoke's day still a matter of some doubt, but in course of timetheir scope is widened. Often the first step in a prosecutionis now an application to a justice for a warrant for the arrestof a suspected person. Fifthly, the justices have acquiredpowers which we may, I think, call governmental. In particular,the new Poor Law system instituted by the act of1601 is placed under their control: so is the new highwaysystem. Quarter sessions thus become not merely a criminalcourt for the county, but also a governmental assembly, aboard with governmental and administrative powers. It thustakes the place of the old county court, which has sunk intobeing a court held by the sheriff or his under-sheriff for thedecision of petty civil causes-chiefly cases of small debts.Parliamentary elections are still said to be held, as of old, inthe county court; but probably a parliamentary election isthe one occasion on which freeholders attend; the smalljudicial business of the court is transacted by the sheriff orhis deputy.A very noticeable feature in English history is the declineand fall of the sheriff, a decline and fall which goes on continuouslyfor centuries. In the twelfth century he is littleless than a provincial viceroy. All the affairs of the county:justice, police, fiscal matters, military matters, are under hiscontrol. Gradually he loses power : new institutions growup around him and overshadow him. As to justice: firstthe king's itinerant judges, then the justices of the peacedeprive him of judicial work: his county court becomes a

234 Constitutionnl History PERIODcourt for petty debts : the functions of his tourn are nowperformed by justices of the peace with statutory power forpunishing small offences: he may never be a justice in hisown county. The control over the constabnlary has slowlyslipped from his fingers and is grasped by the justices ofthe peace. He is even losing his powers as a tax collector;parliament makes other provisions for this matter, and whathe has still to do is very subordinate work. Lastly, he is nolonger head of the county forte, the posse comitatzls. Underthe Tudors the practice begins of appointing a permanentLord-Lieutenant to command the military force, the militiait is coming to be called, of the shire.One of the immediate causes of this decline and fall isthat the sheriff has become an annual officer. In the fourteenthcentury the sheriff was well hated as the oppressor ofthe county: he had taken the county at a rent and tried tomake the most out of it. Having failed, as we have beforenoted, in obtaining elected sheriffs, parliament set itself toobtain annual sheriffs, and ultimately succeeded. This tooka series of statutes extending over near a century, from 1354(28 Edw. 111, c. 7) to 1444 (23 Hen. VI, c. 7). No matterwhat statute may say, the sheriffs remain in office ten andtwelve years: however, in the fifteenth century this point iswon. This seals the sheriffs fate : an officer who is to be thehead of the police and of the military force cannot be an annualofficer. He falls lower and lower until at last he has littlemore to do than to carry out the judgments of courts ofjustice-to seize the property of debtors, to seize their persons,to keep the county gaol, to hang felons. His office, once soprofitable, becomes merely a burdensome, expensive task.The real work is done by an under-sheriff, but the sheriff isresponsible for his conduct and must pay for his mistakes.Already in the seventeenth century it is difficult to get sheriKs-men avoid the office if they can ; but they can be, and are,compelled to serve. The sheriff, I say, falls lower and lowerin real power: his ceremonial dignity he retains-he is thegreatest man in the county and should go to dinner beforethe Lord-Lieutenant.The Lord-Lieutenant is originally a military officer; butI I Lord-Lieutennpzt apzd Copzstnbles 235he becomes also the honorary head of the justices of thepeace. From the first, one of the justices has been speciallycharged to keep the rolls, the records of the justices-he isthe czdstos rotz~lorz~~~. Generally the same person is appointedLord-Lieutenant and custos rotulorz~wz-and it is in the lattercharacter rather than the former that he comes to be regardedas the first among the justices. Under Tudors and Stuartsthe justices are kept well in hand by the king's council, andthe Lord-Lieutenant is the person with whom the councilcarries on its correspondence. At least in later days justicesof the peace are usually appointed on the recommendation ofthe Lord-Lieutenant, but he has no rule over them, he ismerely the first among equals. The justices we rememberare appointed by the king and hold their offices merely duringhis good pleasure. Still the office is regarded more and moreas a permanent office from which a man should not lightly bedismissed.Our last word shall be as to the constables. A constabularyin our modern sense, a force of men trained, drilled,uniformed, and paid there is not-our modern police force isvery modern indeed. But it has become the law that everyparish-or more strictly speaking every township-is boundto have its constable. The constable as we have said isoriginally a military officer-a petty officer in the countyforce; but then the county force, the posse conzitat?ds, is asmuch concerned with making hue and cry after malefactorsas with defensive warfare ; this work falls more and more intothe constable's hands, and as the militia becomes more militarythe constable becomes less military, more purely, in our terms,a police officer. In the seventeenth century he is still electedby his neighbours in the old local courts, in those districts inwhich such courts still exist: elsewhere and perhaps moregenerally he is appointed by the justices. Every capable inhabitantof the township can be appointed constable, unlessthere is some special cause for exemption. Remember that all,or almost all, of our old common law offices are compulsoryoffices-a person appointed cannot refuse them. To this daya man may be made sheriff or mayor of a borough againsthis will. Generally the person chosen as constable was

236 Constitutional History PERIOD I Iallowed to find a respectable substitute-and this he could dofor £5 or £10: the office was annual. The constable had nosalary, but he was entitled to demand certain fees for somepart of his business. His chief business was the apprehensionof malefactors, and for this purpose he was armed with certainpowers additional to those which the ordinary man has : thusit was sometimes safe for a constable to make an arrest onsuspicion, when it would not have been lawful for a privateman. It is well to remember that the constable is an officerlong known to our common law : a great part of the peculiarpowers of the modern policeman are due to this-that he isa constable, and as such has all those powers with which forcenturies past a constable has been entrusted by law. Graduallythe constables come more and more under the control of thejustices of the peace-in particular, it becomes less and lessusual for arrests to be made without the warrant of justices,and in executing such warrants the constable has specialprotection.Let me remind you in conclusion that there is one bookfor the vacation in which some profitable things may befound about Elizabethan justices and Elizabethan constables-if you cannot yet enjoy Lambard's Eirennrcha, you can atleast enjoy Shallow and Silence, Dogberry and Verges.PERIOD 111.SKETCH OF PUBLIC LAW AT THE DEATHOF JAMES I.THE next point at which we will take our stand is thedeath of James I and the quiet accession of Charles I. Letus once more remember that we are neglecting what certainlyare the most obvious divisions of our history. The Tudorperiod is a distinct, well-marked period, and anyone who waswriting the history of England would have to mark it as such.But we are not attempting any such task; rather we arepurposely choosing unusual points of view in order that wemay see familiar facts in new lights-our attempt is tosupplement our books of history. And I want very muchto bring out the fact that the history of our public lawregarded as a whole is very continuous : the very greatestevents that occur in it do not constitute what can fairly betermed revolutions. The Tudor monarchy is indeed somethingvery different from the Lancastrian-the latter was avery limited monarchy, the former, if we regard its practicaloperation, seems almost unlimited. Still the difference, whenwe look into it, is found not so much in the nature of theinstitutions which exist as in the spirit in which they work :the same machinery of king, lords, commons, council, lawcourts, seems to bring out very different results. Again thereis no one minute at which the change takes place-it is notlike a change in law which must take place at some assignabledate. The Tudor kingship differs from the Lancastrian kingship-butwhat are we to say of the two Yorkist kings? Adistinguished modern historian prefers to make what he callsthe New Monarchy begin not with Henry VII, but with

238 Constitutions z ist tory PERIODEdward IV-we have indeed an intermediate time So againat the end of the period, before the death of James I, therelation of the parliameot to the king is practically verydifferent from what it was under Elizabeth: but the changehas not been sudden ; gradually for some time past parliamentshave been becoming more independent : there has beenno great change in the law, but there has been a slow changein the working of the law.A. Parliament.I. Constitution of Parliament.There have been no very great changes in the constitutionof parliament. We look first at the House of Lords. Theparliaments of Henry VII had contained two archbishops,nineteen bishops, and twenty-eight abbots, in all forty-ninespiritual peers. After the dissolution of the monasteries in1540 the abbots disappear, but six new bishoprics arefounded, Oxford, Peterborough, Gloucester, Bristol, Chesterand Westminster, and their occupants as a matter of courseare summoned to the House of Lords though they hold nobaronies. The bishopric of Westminster, however, had nolong continuance : it was dissolved in I 550, so the number ofspiritual peers fell to twenty-six. The number of the temporalpeers does not increase rapidly during the Tudor reigns: anew peerage was seldom created, save when an old peeragewas extinguished ; during the whole period it fluctuates (onaccount of minorities and so forth) round fifty. Thus afterthe dissolution of the monasteries, the spiritual peers becamea minority. A change comes with James I ; he throws aboutpeerages with a lavish hand: eighty-two lay peers sat in hisfirst parliament, ninety-six in his last. Peers are now invariablycreated by letters patent definitely granting the dignity. Thebishops have become distinctly royal nominees. Practicallyfor a long time past the king had usually had his way aboutthe appointment of bishops; his only competitor was thePope-but the form of election by the cathedral chapters wasmaintained. In I 53 I a statute, one of the first statutes directedagainst Rorne, dealt with this matter: the king gives the111 Constitution of Pardinwent 239chapter his licence to elect a bishop, but along with thiscongd d'kliye, he sends letters recommending a candidate, andif he is not elected within twelve days then the king mayappoint a bishop by letters patent. Capitular election istherefore but a solemn formality. In Edward VI's reign eventhe co~zg d'dliye was abolished by statute; the bishops were tobe appointed simply by the king's letters patent. The actwhich did this was of course repealed under Mary, and wasnot re-enacted by Elizabeth, who re-enacted the statute of herfather's reign, which still is law. We observe therefore thatover the constitution of the House of Lords the king has greatpowers : he practically appoints all the spiritual peers ; he canmake as many new lay peerages as he pleases.The House of Commons has considerably increased. Hyan act of 1535 (27 Hen. VIII, c. 26) Wales was brought fullywithin the system of English public law. Monmouthshirebecame an English county with two members, and two forthe borough of Monmouth. Each of the twelve counties intowhich Wales was divided sent one member, and eleven Welshboroughs sent each one member. By another act of 1543(34 Hen VIII, c. 13) two members were given to the county,two to the city of Chester; thus this ancient palatinate wasincorporated in the general body of the realm; Durhamremained unrepresented until after the Restoration. Thusthirty-one members were added. For a short time Calais wasrepresented, but that last relic of the king's French possessionsdisappeared in Mary's reign. But this was by no means all :the king, we remember, had exercised the power of conferringon boroughs the right to send members. Hitherto this powerhad not been extensively used for the purpose of packingparliament, and Henry VI I I used it but very sparingly : hegave the right to but five boroughs. Under Edward VI thepower was lavishly used for political purposes : he thus addedforty-eight members, Mary twenty-one, Elizabeth sixty, Jamestwenty-seven. The number of burgesses in the lower housewas thus vastly increased, and with it the power of the crown.When a new borough was created, and when a new charterwas granted to an old borough, care was generally taken tovest the right of election not in the mass of the burgesses, but

240 Const itutionnl History PERIODin a small select governing body-a mayor and councilnominatedin the first instance by the crown, and afterwardsself-elected. Meanwhile the qualification for the county franchisewas not altered ; it was still, under the act of Henry VI,the forty-shilling franchise, a qualification which, as the valueof money fell, was becoming somewhat low and very capricious.The copyholder now often had just as valuable an estate asthe freeholder ; it was fully protected by the king's courts, andhis ancient services had been commuted for money rents,which, as the value of money fell, became less and less burdensome-stillhe had no vote. Towards the end of our periodwe begin to see many signs that to be a member of parliamentis coming to be an object of desire: contested elections arekeenly fought. James I gave the right to be represented bytwo members to each of the two Universities.The time has come when we can no longer speak of theclergy as forming for any practical purpose an estate of therealm. We have seen that they had neglected to obey theprae~lzunientes clause, but had voted their taxes in their convocations.They still vote their taxes in convocation, butsince 1540 the practice has grown up of passing an act ofparliament to confirm the vote, as if it might be doubtedwhether the convocations could bind the clergy. We have toremember that the church can now no longer claim to beindependent of the state. The clergy have been compelledto admit the royal supremacy. In 1534 the convocationswere compelled to promise that they would make no newecclesiastical canons without the king's licence and approval,and this principle was confirmed by act of parliament. Eventhen within the purely ecclesiastical sphere the convocationscan do nothing without the royal assent, and the doctrine hasgrown up that such canons, even though they have the royalassent, are not binding on the laity'.2. Privileges of Parliament.We have as yet said nothing of what are known as theprivileges of parliament, but this subject can no longer bepostponed, for it is becoming of first-rate importance. Underthis head-privileges of parliament-it is, or was, usual to mixSee pp. 51 1-3.I I I Freedom of Debate 241together several distinct matters. Let us notice first; two ofthe usual sub-heads, (a) freedom of speech, and (b) freedomfrom arrest.(a) During the Middle Ages the right of each house todebate freely and without interference from the king or fromthe other house seems to have been admitted and observed.It is common in this context to mention the case of ThomasHaxey ; in 1397 a bill was laid before the commons andaccepted by them, which contained a bold attack on Richard I1and his courtiers. The king took offence, demanded the nameof the person who introduced the bill ; Haxey's name wasgiven up ; the lords declared that anyone who stirred upthe commons to make such demands was a traitor; theycondemned Haxey to die, but the Archbishop claimed him asa clerk, so he was not executed, and was soon afterwardspardoned: in 1399, shortly after the accession of Henry IV,the judgment was annulled on the petition of the commonsas contrary to their liberties. One of the curious points aboutthis case is that Haxey, to all seeming, was not a member ofthe House of Commons; it is thought that he may have been aclerical proctor attending parliament under the prael~zunientesclause. Such an interference with the freedom of debate seemsto stand almost alone in our medieval history; but in 1376Peter de la Mare, the Speaker, was thrown into prison for hisconduct in the Good Parliament, and remained in prison untilafter the death of Edward I1 I, when Kichard released him ;again in 1453 the Speaker, Thomas Thorpe, was imprisonedthecause seems to have been his opposition to the Duke ofYork ; he was however prosecuted on a private pretext andimprisoned. This occurred during a prorogation. When thecommons again met they demanded their Speaker-theydemanded of the king and lords that they might have theirancient privilege ; the lords however refused their petitionand determined that Thorpe should remain in prison. Here,though the real cause of arrest may have been conduct inparliament, the arrest was made in a civil action under thejudgment of 3. court of law, and it bears therefore rather onfreedom from arrest than on freedom of speech. A muchmore important precedent occurred under Henry VIII in

Co~zstitutionad History1512. Strode, a member of the commons house, was imprisonedby the Stannary Court for having proposed certainbills in parliament to regulate the privilege of the tin miners.A statute was therefore passed declaring void the proceedingsagainst him, and declaring in a general way that anyproceedings against any member of the present parliament orof any future parliament for any speaking in parliament shouldbe utterly void and of none effect. This was a statutoryrecognition of the freedom of debate. In Charles 1's day theking's party had to contend that this was no general statute,but had reference only to the particular case of Strode;the judges in the famous case of Sir John Eliot upheld thiscontention ; then in the Long Parliament the commonsresolved that Strode's Act was a general act, and the lordsconcurred in this resolution : but all this still lies in thefuture. In 1541 for the first time the Speaker at the beginningof the session included freedom of speech as amongthe ancient and undoubted rights and privileges which thecommons claimed of the king, and thenceforward it becamethe regular practice that the Speaker should demand thisprivilege. It is during the reign of Elizabeth that thisprivilege becomes a matter of contention, though the queencleverly manages that disputes shall be compromised. In1566 she prohibits the commons from discussing the successionto the crown, but then gives way, revokes the prohib~tion,and the commons are grateful. In I571 Strickland, who hasintroduced some ecclesiastical bills, is called before the counciland ordered not to appear again in parliament; the queenagain gives way. In 1576 Peter Wentworth makes trenchantspeeches about freedom of debate ; the commons are againsthim, and themselves commit him to the Tower. The samefate befalls him in 1588. The commons acquiesce in thequeen's command that they shall avoid religious topics. InI 593 she is very positive-members are only to vote 'Aye' or' No,' and ecclesiastical matters are not to be discussed ; oneMorice is committed to prison for introducing an ecclesiasticalbill. The commons seem during these years very submissive,especially about ecclesiastical matters : they seem to feel thatthe time is full of dangers, and that the queen understandsFreedom from Arrestreligious matters better than they do themselves. WithJames on the throne circumstances have changed: in 1614,when he dissolves his second parliament, he commits fourmembers to the Tower; in 1621 Sandys is committed, andJames tells the commons pretty distinctly that their privilegesexist by his sufferance. The result of this is the Protestationof 18 December, 162 I : the commons declare that the privilegesof parliament are the ancient and undoubted birthright of thesubjects of England-that the commons may handle anysubject, and enjoy a complete freedom of speech1. Jamessends for the journals of the commons, tears out the protestwith his own hand, and dissolves parliament. On the whole,we see that when Charles comes to the throne there are plentyof materials for a conflagration.(6) The topic of freedom from arrest is connected, as wehave seen, with that of freedom of speech, but it is wider.Not only do members of parliament claim that they are notto be arrested for words spoken in the house, but they claima general immunity from the ordinary law. We have heretherefore to note that until very lately our law made a freeuse of imprisonment, not merely in crim~nal cases, but in civilcases also; a debtor against whom a judgment had beenobtained could be imprisoned until he paid the debt-hecould be taken in execution ; but also a defendant in a civilaction could very generally be imprisoned as soon as theaction was begun, unless he found bail for his appearance incourt. Now the lords from an early time seem to haveenjoyed a considerable immunity from arrest except oncriminal charges, and the representatives of the commonsseem to have claimed a similar liberty during the session ofparliament and for a certain time before and after the sessionreasonably necessary for their coming and going-exemptionfrom arrest upon criminal charges, at least in case of treason,felony or breach of the peace, was not claimed. A statute ofI I Hen. VI, c. I I (1433) gave some sanction to this privilegehewho assaulted a member attending parliament was to paydouble damages. The privilege was invaded in Thorpe'scase, and the invasion was sanctioned by the House of Lords :but the judges who were consulted expressed themselves veryProthero, Constitutional States and Documents, p. 313.

244 Comtifu f ional HistoryPERIODpositively as to its existence, and further made a declarationwhich was to be of great importance in the future, to the effectthat the courts of law could not measure the privileges ofparliament, these being matters which could only be determinedby parliament itself. The houses, in particular theHouse of Commons, by degrees carried the principle furtherand further. In 1543, in Ferrer's case, they began a practiceof sending their sergeant to deliver a member arrested fordebt, and Henry VIII admitted the existence of the privilege.In 1575 they delivered one Smalley, a member's servant,arrested for debt. In 1603 they delivered Sir Thomas Shirley,who had been arrested for debt; this produced the passing ofan act (I Jas. I, c. 13), which, while it fully admitted and gavestatutory sanction to the existence of the privilege, yet madecertain provisions for the benefit of the creditor. In theseventeenth century this privilege grew to huge dimensions; itbecame almost impossible to get any justice out of a memberof parliament, and limits had to be set to what had becomean intolerable nuisance.(c) Connected with these matters is the power (or if weplease to call it so, the privilege) of each house to punishpersons (whether they be members of it or no) for a contempt.Already in I 548 we find the commons committing John Storie,one of their members, to the Tower, probably for having spokendisrespectfully of Somerset the Protector. From I 58 I wehave Hall's case. Arthur Hall, member for Grantham, haspublished a book derogatory to the authority and power ofthe house ; his punishment is severe; by an unanimous votethe commons expelled him, fined him 500 marks, and senthim to the Tower. In 1585 they expelled Dr Parry forhaving spoken too warmly. But they also took on themselvesto punish those who were not members of the house. Notonly did they commit to prison those who interfered withtheir immunity from arrest, but they also punished some whospoke against the house: thus in 1586 one Bland was finedfor having used contumelious expressions against the House.But they have not been content with punishing persons whohave insulted the house : in 162 I they condemned one Floyd,who had expressed his satisfaction in the success of theCatholic cause in Germany, to pay a fine of £1000 and tostand in the pillory. The lords resented this assumption ofjudicial power, and the commons admitted that they were inthe wrong-that they had no jurisdiction except when theprivileges of their own house were infringed. Floyd howeverdid not profit by this: the lords condemned him to a fine of£f;5ooo and whipping and branding, besides the pillory. Thestory is disgraceful to both houses. Here again it is evidentenough that the constitution is not working peacefully ; boththe king and the two Houses of Parliament are ready tocommit acts of very questionable legality.3. Jurisdiction of Parliament.This leads us to speak of the judicial functions of parliament-forit is sometimes reckoned among the ' privileges 'of the House of Lords that the judicial power of parliamentbelongs to it. Such a use of the word privilege is not veryaccurate or convenient-but nevertheless should be observed.This matter has already come before us in the past1; we haveseen that the representatives of the commons never gained ashare in the judicial work of the parliament-in I Hen. IV(1399) they had protested that they were not judges, andshortly before the occurrence of Floyd's case, after a searchfor precedents, they had come to the conclusion that they hadno power to punish save for a contempt of their house; inFloyd's case they were reminded of these declarations andfor a while attempted to evade them, but in the end gaveway. The judicial work of parliament, done by the Houseof Lords, we have on a former occasion brought under threeheads.(a) As a court for correcting the errors in law of theordinary law courts, the House of Lords did very little duringthe greater part of the period that is under our review:hardly a case of error is to be found between Henry IV andElizabeth The infrequent sessions of parliament, the factthat the council had assumed a very wide power of judicature,may be the causes of this. About 1580 however this, amongother powers of the parliament, was revived; the lords beganonce more to hear cases of error, and a statute of I 585 distinctlyp. 214ff.

246 Constitutions Z History PERIODrecognized their power to do so. A little later they beganalso to hear both civil and criminal cases as a court of firstinstance. For this they had but few precedents-it is saidthat they could find but one between 1403 and 1602. Theydid not, as we shall afterwards see, ultimately succeed inestablishing their right to act as a court of first instance, butfrom about 162 I onwards until the civil war they did so act ; andin the year 1625, at which we have placed ourselves, perhaps weought to say that it is somewhat doubtful whether they maydo so or no-here again is an open question raised by therenewed activity of parliament.(6) That a peer charged with felony or treason oughtto be tried by the House of Lords if that house be sitting,and if not then by the Court of the Lord High Steward isnow an admitted principle; but such trials have been far fromcommon.(c) The procedure by way of impeachment has just beenrevived. It seems true to say that there is no case of animpeachment between that of the Duke of Suffolk in 1449and that of Sir Giles Mompesson in 1621, which was at oncefollowed by those of Mitchell, Bacon and others : Mompessonand Mitchell were commoners, impeached of fraud, violenceand oppression. The impeachment of Bacon for bribery isstill more important, for he, of course, was a minister of theking-he was chancellor. In 1624 the Earl of Middlesex, theLord Treasurer, was impeached for bribery and other misdemeanours.It is evident that parliament has unearthed aweapon of enormous importance. During the Tudor reigns,matters had stood differently ; there was no talk of impeachingthe ministers of Henry VIII, and when he had made up hismind to destroy an enemy or a too powerful servant he madeuse of an act of attainder. Cromwell had by the king'scommand obtained an opinion from the judges to the effectthat by an act of attainder a man might lawfully be condemnedwithout a trial, though, they said, this would form adangerous precedent. Under such an act it was that Cromwellhimself perished. An act of attainder, you will remember, isin form not a judicial but a legislative act, a statute made bythe king with the consent of lords and commons.111 Money -Bills 2474. Fzozctwtzs of the Commo~zs itz grantifzg money.The function of originating money-bills is sometimesreckoned among the privileges of the House of Commonsatany rate it is the function of that house. We have seenit growing in the past-in particular we have noticed thestate of things under Henry IV1. The matter becomes clearerduring the period which we are now surveying. To grantsubsidies is the function of the commons, but the grant requiresthe authority of a statute enacted by king, lords and commons.In 1593 the commons resent a message from the lordsreminding them of the queen's want of money-the customis that the offer of subsidies shall proceed from this house.But it is not until just after the end of our period that adefinite formula is adopted which expresses the share of thetwo houses in the work. Under Elizabeth and James thelords and commons are sometimes said to grant the moneymorefrequently the commons are said to grant with theconsent of the lords. In the first parliament of Charles I weget the formula that is still in use. An act is passed whichrecites that the commons have granted a tax, and then it isenacted by the king, by and with the advice and consent ofthe lords spiritual and temporal in parliament assembled andby the authority of the same, that the tax be imposed. It isnot until after the Restoration that the commons begin tocontend that the lords can make no alteration in a moneybill, but must simply accept it, or simply reject it5. R&At to determine disputed Electtons.The commons claim a right to determine all questionsrelating to the election of members of their house. Suchquestions in the past seem to have been determined by theking in council. Under Mary, however, we find the commonsappointing a committee to inquire whether Mr AlexanderNowell, prebendary of Westminster, may be a member ofthis house; and it is declared next day that as he is aprebendary of Westminster and as such has a voice inconvocation, he cannot be a member of this house, and thatthe queen's writ ought to issue for a new election In 1586the commons, in opposition to the queen, definitely insist that1 p. 181

248 Constitutionn .l History PERIODit is for them to inquire into the circumstances of a disputedelection-and from this time forward they frequently exercisethis function and it seems admitted to be properly theirs1.6. Parliamentary Procedure.It is during the period with which we are now dealingthat the great outlines of parliamentary procedure, as we nowknow them, are drawn-the practice of reading bills threetimes, and so forth. Each house may manage its own affairs;there is no legislation as to its procedure, but graduallyprecedents are formed and respected and a mass of traditionalrules is the outcome. In the House of Lords proxies areadmitted; from an early time we find the king licensingbishops and barons to be present in parliament by proxy.In the sixteenth century it becomes the rule that the proxymust himself be a member of the house. This privilege ofappointing a proxy seems never to have been extended tomembers of the lower house. Lords also who dissent fromthe action of the house exercise the right of entering formalprotests upon its journals; this practice grows up in thesixteenth century; there is no similar practice among thecommons. Each house conducts its business in privacy ; theking, however, occasionally visits the House of Lords, andmakes speeches there ; a throne is set for him there ; but hispresence is not necessary, and in practice has become asomewhat rare event.7. Frequency and Duration of Parliaments.We can have little idea as to what a parliamentaryconstitution has really meant until we have considered howoften parliament has met. We remember that underEdward IV and Henry VII parliaments have been becomingfar less frequent than they were in the fourteenth and thefirst half of the fifteenth century. We remember also thatthere are statutes of Edward I11 yet unrepealed which seemplainly to mean that a parliament ought to be summoned atleast once in every year.Henry VIII in his thirty-eight years held nine parliaments.One of these, however, endured for nearly seven years-this1 The question was again raised in the Bucks. Election case (Goodwi~ v.Fovtcscuc 1604). Gardiner, History of England, vol. I, pp. 167-70.111 Fyequency and Du~atiopz of PnrZia?n~~zts 249was the great Reformation parliament, which was summonedfor 4 Nov. I 529 and was not dissolved until 4 April, I 536 ; itsat in 1529, 1530, 1531, 1532, 1533, twice in 1534 and once inI 536 ; a parliament with so long a life was a very new thing.There is only one long interval without a parliament, namely,from 22 Dec. I 5 I 5 to I 5 April, I 523, an interval of more thanseven years.Edward VI reigned from 28 Jan. 1547 to 6 July, 1553-six and a half years. There were but two parliaments. Thefirst was summoned for 4 Nov. I 547 : it sat a second time inNov. I 548, again in Jan. I 549, again in Nov. 1549, again inJan. I 5 52, and it was dissolved I 5 April, I 552-having lastedfour and a half years. Another parliament was summoned forI March, I 553, and was dissolved at the end of the same month.Mary reigned from 6 July, 1553 to 17 Nov. I 558-a littlemore than five years, and in those five years five parliamentswere held.Elizabeth reigned from 17 Nov. 1558 to 24 March, 1603-444 years; ten parliaments were held. There is one longparliament and some long intervals. Parliament I lastedfrom 23 Jan. 1559 to 8 May, I 559. After an interval of threeyears and more Parliament I1 met on 11 Jan. 1563 andendured to 2 Jan. 1567, having lasted four years. After aninterval of four years Parliament I11 met on 2 April, 1571, andlasted until May. Parliament IV lasted from 8 May, I572to 17 April, 1583-hard on eleven years. This is the longestparliament we have yet met with. But it held only threesessions-in I 572, I 576, I 581 ; it was prorogued on 24 April,1581, and, never met again for business, though by repeatedprorogations its nominal life was prolonged for another twoyears. Parliament V was summoned for 23 Nov. I 584 andlasted with two sessions to 14 Sept. 1585. Parliament VImet on I 5 Oct. 1586 and was dissolved on 23 March, I 588.Parliament VII met on 12 Nov. 1588 and was dissolved on29 March, 1589. Then there is an interval of near four years.Par!iament VIII met on 19 Feb. 1593 and was dissolved on10 April, 1593. Another interval of four and a half yearsoccurs. Parliament IX met on 24 Oct. 1597 and was dissolvedon g Feb. 1598. Again there is an interval of four'

250 ConstitzctionaZ History PERIODyears. Parliament X met on 27 Oct. 1601 and was dissolvedon 19 Dec. 1601. In March, 1603 the queen died.James I reigned from I March, 1603 to 27 March, 1625-twenty-two years. Four parliaments were held. There is onelong parliament of nearly seven years, and two considerableintervals. Parliament I met on 19 March, 1604 and was notdissolved until g February, 1611 ; it held five sessions,rg March-7 July, 1604,~ I Jan.--27 May, 1606, I 8 Nov. 1606-4 July, 1607, g February--23 July, 1610 and 16 Oct. 1610-g February, 161 I. After an interval of more than three yearsParliament 11, ' the addled Parliament,' met on 5 April, 1614and was dissolved on 7 June of the same year. Six and ahalf years intervened. Then Parliament I I1 met on 30 Jan.1621 and was dissolved after two sessions on 8 Feb. 1622.Parliament IV met on 12 February, 1624 and was d~ssolvedby the king's death on 27 March, 1625.Looking back then we may say that although the statutesof Edward 111's reign have not been observed and are veryprobably regarded as obsolete, parliaments have still beenfrequently holden. The king has not been able to get onfor more than three or four years without calling a parliament.James managed to do without a parliament for near sevenyears, and he kept the same parliament alive for near sevenyears: for so long a life there was a precedent in Henry VIII'sreign, and one of Elizabeth's parliaments lived eleven years.We find from what happens under Charles I that the nationwould be content if a parliament met once in three years,and was never kept in existence for longer than threeyears. The long parliaments of Henry VIII, Elizabeth andJames, no doubt had very important results-not only didthey educate the commons to act together, but they familiarizedthe nation with the notion of parliament as of a permanententity, in which the sovereignty of the realm might be vested:it is difficult to think of sovereignty being vested in so fleetingan affair as a medieval parliament, which exists for a monthor two and disappears.The principles which at the present day make it indispensablynecessary that parliament should sit in every yearwere not yet in fr~rce; there was no standing army to be111 King aazd ParZiame~t 251legalized, and the king did not by any means always require agrant of money in every year. Each of the kings and queensof our period has tonnage and poundage granted for life;parliament also often grants additional taxes which willcarry the king on for several years. The king is now richas compared with his predecessors-the spoils of the monasterieshave enriched him-the feudal sources of revenue arevery profitable-wardships, marriages and the like bring inlarge sums. Under James I there has been much talk ofbuying up the king's feudal rights : the parties have not beenable to come to terms however-the king wanted in exchangean income of Azoo,ooo.B. Relation of the King to Parliament.If now we look at the relation of the king to the parliamentand ask whether parliament has lost or gained in powerwe have a rather complicated answer to give. On the onehand there is no doubt that the parliaments of the Tudorreigns, more especially those of Henry VIII's reign, wereextremely submissive, practically Henry could get them todo what he wanted. I need not instance his matrimonial affairs,or the great religious revolution, the measures whereby he wasmade head of the church ; the best instance is, I think, givenby the remission of his debts. In the years between I 522-8 heexacted heavy loans by a regular process not far removedfrom compulsion; in 1529 parliament wiped out all the debts;he had recourse to the same expedient in 1542, and theparliament of 1543 whitewashed him once more. It isonly towards the end of our period that parliament againbegins to act as an independent check upon the king, toassert a will of its own; the parliaments of Elizabeth grumble,the parliaments of James I more than once resist him anddefeat him. How it came about that the earlier parliamentshad been so very tractable, it is hardly for us to inquire, forthis question lies beyond the legal domain ; the remembranceof past anarchy had to do with it, the religious difficultieshad to do with it, foreign affairs had to do with it, the nationdesired a time of peace and of strong government. We must,

Constitutional HistoryI think, add that the nation was thoroughly frightened byHenry. But what does demand our notice is that this verytractability of parliaments serves in the end to save and tostrengthen the parliamentary constitution ; parliament is sotractable that the king is very willing that king in parliamentshould be recognized as supreme-it strengthens his handsthat what he does should be the act of the whole nation. Letus then look at some of the more extraordinary exercises ofthis sovereign power of king in parliament. We have alreadyreferred to the acts which blotted out King Henry's debtsthatsurely is an extraordinary exercise of power. We havealso spoken of acts of attainder-these also are extraordinary;without any pretence of legal trial a statute may be passedcondemning a man to death, and no court of law will call itsvalidity in question. But now look at the royal succession.Thrice over during Henry's reign was the succession arrangedby act of parliament; the king's marriage with Katherine ofAragon was declared void, and his marriage with AnneBoleyn was declared valid; then the marriage with AnneBoleyn was declared void ; then again both Mary the daughterof Katherine, and Elizabeth the daughter of Anne were treatedas legitimate and placed in the succession ; then in defaultof the heirs of his body, Henry was to have power to leavethe crown by will to anyone he pleased-to anyone, notnecessarily a member of the royal house. It is fairly certainthat Henry did exercise this power given him by act ofparliament, and devised the crown on the failure of the issueof his three children to the heirs of the body of his youngersister Mary, Duchess of Suffolk, postponing to them thedescendants of his elder sister Margaret, Queen of Scots.In the first year of Elizabeth it was enacted by parliamentthat if any person should affirm that the queen could notwith the assent of parliament make laws to settle the descentof the crown, he should be deemed a traitor. There can beno doubt that there was a very strong sentiment in favour ofstrict hereditary descent-that seems the explanation of theundisputed succession of James I. In all probability hesucceeded to the throne in defiance of a will duly executedby Henry VIII under the power given to him by act ofSupremacy of Statute Lawparliament ; nothing however seems to have been said of thewill, and the house of Suffolk made no claim. James, as itseems to me, had good reason for supposing that he reignedby virtue of strict hereditary right ; he and his successors hadat least an excuse for believing that such right could not beoverridden by act of parliament. Still, as we have just seen,there were important precedents the other way-parliamenthad repeatedly and successfully regulated the succession tothe throne.A still better illustration, however, at once of the actualtractability of parliaments and of the theoretic supremacy ofking in parliament is afforded by an act of I 539, which has beencalled the Lex Regia of England, and the most extraordinaryact in the Statute Book-power was given to the king tomake proclamations with the advice of his council, or amajority of his council, to make proclamations which shouldhave the force of statutes ; the punishment for disobediencemight be fine or unlimited imprisonment; it was not toextend to life, limb, or forfeiture. This act was repealed inthe first year of Edward VI-you will at once see theimportance of its enactment and its repeal; they seemdistinctly to confirm the doctrine that the king is notsupreme, king and parliament are supreme; statute isdistinctly above ordinance or proclamation ; statute may giveto the king a subordinate legislative power, and what onestatute has given another statute may take away.There is a yet stronger illustration and this, though it isa rather elaborate story, is worth giving, for it is not generallyknown. The accession of an infant in the person of Edward VIhad been foreseen. His father was given power by statuteto appoint governors. He appointed his sixteen executors toform a governing council. They, when Henry was dead,elected Somerset to be Lord Protector, and very soon allowedhim to take the whole power into his own hands. Now inI 536 Henryhad procured the passing of a statute (28 Hen.VII1,c. 17) which was to enable future kings to rescind any acts ofparliament that should be passed while they should be underthe age of twenty-four. This act however was at once repealedon the accession of Edward VI, by a statute of 1547 (I Edw. VI,

Constitutioaad Historyc. I I), the requisite royal assent being given by the Protectorand the governing council. The reason for revoking the actof 1536 was this, that it was drawn in such very wide termsthat had Edward attained the age of twenty-four and revokedthe statutes made while he was under that age, it might wellhave been contended that these statutes were not merely nulland void for the future, but that they had all along been nulland void, so that everything done under them which couldnot be justified by the common law would have been renderedillegal expost facto. The act of I 547 repealed this act ; it gavethe king power when he should attain twenty-four to rescindthe statutes passed while he was under that age, but declaredthat such a repeal was not to have retrospective force. Onthe whole, I know of no acts of parliament which betterillustrate our notion of the absolute supremacy of a statute.A statute gives a king power to revoke statutes and evenrender them void ab initio; this cannot prevent anotherstatute being passed during that king's minority (his assentbeing given by a council of regency which itself is thecreature of a statute), which statute may repeal or modifythe previous statute that gave a power of revoking statutes.The power of statute-making cannot be curtailed; noparliament can bind the hands of its successors with anylegal bonds.We might multiply illustrations. Probably it was in thedomain of religion that the men of the time saw what seemedto them the most conclusive proofs of the sovereignty of kingin parliament. Throughout the Middle Ages there was atleast one limitation set to temporal sovereignty; it had nopower in spiritual matters; the church was an organismdistinct from the state. But now statutes have gone to thevery root of religion; the orthodox creed is a statutorycreed and that creed has been changed more than once.Thus statute has given the most conclusive proof of itspower.Not only however do we find the supremacy of king inparliament admitted in fact, we find it proclaimed in theory.The Tudor kings are well content that this should be so.The following emphatic and remarkable passage occurs inSeat and Theory of Sovere&wty 255' The Commonwealth of England and the manner of governmentthereof'-a book published in 1589 by Sir ThomasSmith who was Secretary of State to Queen Elizabeth : ' Themost high and absolute power of the realm of Englandconsisteth in the parliament.. ..That which is done by thisconsent is called firm, stable and sa?zctu?tz, and is taken forlaw. The parliament abrogateth old laws, maketh new,giveth orders for things past and for things hereafter to befollowed, changeth rights and possessions of private men,legitimateth bastards, establisheth forms of religion, alterethweights and measures, giveth forms of succession to the crown,defineth of doubtful rights, whereof is no law already made,appointeth subsidies, tailes, taxes, and impositions, giveth mostfree pardons and absolutions, restoreth in blood and nameas the highest court, condemneth or absolveth them whomthe prince will put to that trial. And to be short, all thatever the people of Rome might do either in centuriatisco)~zitiis or tributis, the same may be done by the parliamentof England which representeth and hath the power of thewhole realm, both the head and body. For every Englishmanis intended to be there present, either in person or byprocuration and attorneys, of what preeminence, state, dignityor quality soever he be, from the prince, be he king or queen,to the lowest person of England. And the consent of theparliament is taken to be every man's consent1.' That is avery memorable passage ; the following century, we may say,was one long struggle as to where sovereignty should be,should it be in king and parliament or in king alone. Therecan be little doubt, I think, which party had history on itsside, not merely remote history, but the history of the recentTudor reigns ; the absolute supremacy of the statute-makingbody, of king and parliament, had been both admitted in factand acknowledged in theory.Still it must candidly be admitted that the extent of theroyal power was in many directions very ill defined. Beforespeaking of this it is necessary to refer to the council. TheTudor reigns are, we may say, the golden age of the council :1 Sm~th, De Repudbca A~zglo~t~nz, ed. L. Alston (with a preface by F. W.Maitland), Cambridge, rgo6, Bk. 11, c. I.'

Constitutional HistoryPERIODthe council exercises enormous powers of the most variouskinds; but it is not an independent body-as against the kingit has little power or none at all, and when in the case ofEdward VI the king is a boy, then the council raises upabove itself a Lord Protector, who acts pretty much as a kingde facto. In 1553 the council consists of forty members ; thereare but four bishops and fourteen temporal peers; the rest arecommoners, among whom are the two king's secretaries, whobefore the end of our per~od have gained the title ' the king'ssecretaries of state.' The large number of the commonersmarks a great change; the government of the realm hasslipped out of the hands of the nobles In 1536 it is matterof complaint that the councillors are of humble birth. Theking chooses capable commoners who will serve him welland who will not be independent. Again, the ecclesiasticalmembers of the council have lost their independence ; if theyrepresent the church, still it is a church of which the king ishead. On the whole, the council seems to be just what theking would wish it to be, and he consults it or not, as pleaseshim best; many important negotiations Henry does not bringbefore his council at all. But to the king a council of ableservants is a source of strength.We must now look at the powers wielded by the kingwith the assistance of his council. We will bring the subjectunder four heads-(I) legislation, (2) taxation, (3) judicature,(4) administration.(I) It certainly seems to have been the common opinionthat the king had a certain ordaining power. Regard beinghad to the past it was difficult to deny this; but what wereits limits? Henry VIII, we have seen, obtained from parliamenta statute giving to his proclamat'ions issued with theconsent of the majority of his council the force of statutelaw1. But then thls act was repealed. Elizabeth, we find,freely issues proclamations : thus anabaptists are banishedfrom the realm, Irishmen are commanded to depart intoIreland, the exportation of corn, money, and various commoditiesis prohibited. A proclamation in 1580 forbids theerection of houses within three miles of London under painof imprisonment. The council frequently issued proclama-1 See p. 253.111 Proclamations 257tions to restrain the importation of books, and to regulatetheir sale-thus a censorship of the press was established.James I followed the example of his predecessor-in particularhe issued frequent proclamations to forbid the increase ofLondon. In 1610 the commons protested- it is the indubitableright of the people of this kingdom not to be madesubject to any punishment that shall extend to their lives,lands, bodies or goods, other than such as are ordained bythe common laws of this land, or the statutes made by theircommon consent in parliament. Nevertheless it is apparentboth that proclamations have been of late years much morefrequent than heretofore, and that they are extended not onlyto the liberty, but also to the goods, inheritances and livelihoodof men, some of them tending to alter some parts ofthe law and to make a new; other appointing punishments tobe inflicted before lawful trial and conviction,' and so forth.'By reason whereof there is a general fear conceived andspread among your majesty's people, that proclamations will,by degrees, grow up and increase to the strength and natureof laws1.' To all this, and there is more of it, the only answeris that the proclamations shall go no further than is warrantedby law.Before this answer was given the great oracle of the lawhad been consulted. Coke, then Chief Justice of the CommonPleas, was summoned to the council, and the question was putto him, whether the king by proclamation might prohibit theerection of new buildings in London and the making of starchfrom wheat. He was pressed to answer in the affirmative.He refused to answer without consulting his brethren. Heconsulted with three judges, and they answered that the kingcannot by his prerogative create any offence which was notone before, but the king may by proclamation admonish allhis subjects that they keep the laws and do not offend themupon punishment to be inflicted by the law-neglect of aproclamation aggravates the offence ; lastly, if an offence benot punishable in the Star Chamber, the prohibition of it byproclamation cannot make it so. This probably was soundlaw-that is to say, there was a distinct precedent for itSon~e~s' Tracts, vol. 11, p. 162 The protest 1s also ~rlnted by Hallan],Constttutzonal H~story, vol. I, pp. 327-8.

Constitutio~znZ Historycoming from the middle of the Tudor period. In Mary'sreign the judges had delivered this opinion: 'The king, it issaid, may make a proclamation quoad terrorem populi, to putthem in fear of his displeasure, but not to impose any fine,forfeiture, or imprisonment : for no proclamation can make anew law, but only confirm and ratify an ancient one.' Butthough James I had the opinion of his judges against him,still he went on issuing proclamations. It is difficult for us torealize the state of things-that of the government constantlydoing what the judges consider unlawful. The key is theCourt of Star Chamber-the very council which has issuedthese proclamations enforces them as a legal tribunal, and asyet no one dares resist its judicial power.(2) But of course it is one thing to say that the king hasno general legislative power and another thing to say thatthere are no matters about which he can make valid ordinances:thus it may be in his power to regulate the importation andexportation of goods. We are thus led to speak of thetaxing power. The highroad of direct taxation had longbeen barred to the king by very distinct statutes ; the case ofcustoms duties was almost equally clear. It is said, and Ibelieve with truth, that between the accession of the Houseof Lancaster and the reign of Mary there is no precedent forany duty imposed by the king. Edward IV had recourse tobenevolences, Henry VII and Henry VIII to forced loansbutthey did not attempt to impose taxes on merchandise'.However in 1557 Mary set a duty on cloths exported beyondseas, and afterwards a duty on the importation of Frenchwines. It seems probable that at the beginning of Elizabeth'sreign the opinion of the judges was taken by the council asto the legality of these impositions, and that their opinionwas not favourable. The queen however did not abandonthe impost, and she herself set an impost on sweet wines.James imposed a duty on currants over and above the taxwhich was set on them by the statute of tonnage and poundage.Bate refused to pay. The Court of Exchequer decided inthe king's favour. It is difficult to understand the judgmentas an exposition of law ; rather, I think, we must say that theHenry VIII was given power in 1534 (26 Hen.VlI1, c. x) during his 'lifenatural'to repeal or revive acts relating to the ~n~portation and exportation of merchandiseking succeeded in obtaining from the barons of the Exchequera declaration that there is a large sphere within which thereis no law except the king's will. 'The matter in question ismaterial matter of state, and ought to be ruled by the rules ofpolicy; and if so, the king has done well to execute his extraordinarypower. All customs, old or new, are effects ofcommerce with foreign nations; but commerce and affairswith foreigners, war and peace, the admitting of foreign coin,all treaties whatsoever, are made by the absolute power of theking. The king may shut the ports altogether; therefore hemay take toll at the ports.' This seems the main thought ofthe judgment. It seems that the opinion of the two ChiefJustices, Popham and Coke, was taken, though the case didnot come before them judicially. They would not go nearly sofar as the barons of the Exchequer. They said that the kingcannot set impositions upon imported goods at his pleasure,but that he may do so for the good of the people-thus ifforeign princes set taxes on English goods the king mayretaliate. Their doctrine seems to have been that the kingmay not set impositions merely for the sake of revenue, butthat he may do so for other ends, as for the protection ofEnglish merchants : obviously this is an unstable doctrine.The House of Commons in 1610 took up the matter. Thelawyers in that house, in particular Hakewill, very learnedlydisputed the judgment of the Exchequer, relying on thestatutes of the fourteenth century, and on the cessation of anyattempts to tax merchandise without parliamentary authorityfrom the reign of Richard I1 to the reign of Mary. Theycarried a bill enacting that no imposition should be setwithout the consent of parliament, but the lords rejected it.The immediate consequence had been that in 1608 the king,having the judgment in Bates's case at his back, issued a bookof rates imposing heavy duties upon almost every article ofmerchandise. The subject was resumed in the short parliamentof 1614; the commons passed a unanimous vote denyingthe king's right of imposition. They refused to grant anysubsidy until this grievance should be redressed. Jamesdissolved the parliament1.See Prothero, Statzifes nnd Constzt~rfzonnlDoctme~zts (15~9-1625), PP. 340-53.

260 Constitutiona Z History PERIODA more serious step was now necessary if money was tobe obtained. The king had recourse to benevolences. Letterswere written to the sheriffs directing them to call uponpersons of ability for contributions. The unrepealed statuteof Richard 111 against 'exactions called benevolences' stoodin the way. Still it was difficult to argue that the king maynot accept a perfectly voluntary gift of money. To the endof the reign the impositions are exacted, though the commonsfrom time to time protest against them.The legal ground that they occupied was certainly strong,but we must not exaggerate its strength. They were obligedto concede the existence of prerogatives which, at least in oureyes, amount to a prerogative of extorting money. Forinstance, Hakewill in his famous argument over Bates's caseadmits that the king can debase the coinage, and as a matterof fact the kings have done this over and over again. Theking's power over the coinage was certainly very great.Sir Matthew Hale, writing after the Restoration, is still ofopinion that the king may debase the coinage. It is legal,though dishonourable. Even Blackstone is not certain thatit is illegal1. This is one instance of the admitted powers ofthe king, powers whereby he could increase his revenue.Another instance, and one which becomes of importance inJames's reign, is afforded by monopolies.From the Conquest onwards the kings had exercised theright of granting and selling many valuable privileges-toname but one, though an important matter,-it was to charterspurchased from the kings that the towns owed their privileges.Not unfrequently such privileges included privileges of trading-the right to hold a fair or a market could be granted bythe king. So could the right to take toll for merchandisepassing through the town. Such grants were common, anddo not seem to have been in the least unpopular ; it was theobject of every town to obtain as comprehensive a grant aspossible. Under the Tudors the practice of granting rightsof exclusive trading assumed enormous proportions : letterspatent giving the patentee the exclusive right of selling becamecommon, and some very necessary articles such as salt, leather,Hale, Pleas of the Crown, vol. I, p. 194. Blackstone, Comvzentaries, vol. I, c. 7.and coal had been made the subject of monopolies. In 1597the commons begin to protest ; these monopolies have becomea grievous burden. In 1601 a bolder attack is made, andElizabeth was induced to promise that the existing patentsshould be repealed and no more issued. The commons howeverdo not seem to have been prepared to assert that allmonopolies were illegal, or to separate those which wereillegal from those which were not. James, disregardingElizabeth's promise, made a copious use of monopolies forthe purpose of obtaining a revenue. The commons grewbolder, asserted the illegality of all monopolies, and in the lastparliament of the reign a declaratory act was passed-an actdeclaring not merely that grants of monopoly were to be illegalin the future, but also that they had been illegal in the past1.This is the greatest victory of the commons during the reignof James. An exception was made in favour of letters patentgranting the exclusive right of using for a term of fourteenyears any new manufacture to the first and true inventor thereof.Our modern patent law is the outcome of this exception.(3) It is by means of the judicial power of the Court ofStar Chamber that the king enforces his proclamations. Wehave already said something of this court 2. Let us rememberthat a statute of 1487 (3 Hen. VII, c. I) gave authority tocertain persons to punish certain crimes. These persons arethe chancellor and treasurer of England and the keeper of theprivy seal, or two of them, calling to them a bishop and atemporal lord of the king's council and the two chief justices,or in their absence two other justices. The offences that theyare to punish are riots, unlawful assemblies, bribery of jurors,misdoing of sheriffs, and some others which we may describeas interferences with the due course of justice. It is evidentlycontemplated by the statute that the accused persons will notbe tried by jury. The statute does not mention the StarChamber, but that is a room which the council has long used.Now a difficulty meets us : long before the end of ourperiod there exists what is known as the Court of StarChamber. This however does not exactly correspond to thear James I, c. 3. The Act did not apply to monopolies. Gardiner, Hssbryof England, vol. v, p. 233, vol. VUI, PP. 71-5.See pp. 2x8-ar.

262 Constitutionn Z History PERIODcourt described by the statute of 1487-and that in tworespects. (a) All the members of the council seem to havebeen members of it. James himself, at least upon someoccasions, sat there in person and himself passed sentence.As many as twenty-five councillors are sometimes found sittingfhere. It had a great deal of work to do, and in term timesat three days a week. This brings us to the second point.(b) It did not confine itself to dealing with the crimesspecified in the statute of 1487. Its jurisdiction over crimewas practically unlimited, or limited only by this-that it didnot pass sentence of death. We know it best as dealing withwhat may be called political crimes-sedition and the like;but it dealt also with commoner offences-robbery, theft, andso forth. It dealt with some misdoings for which the commonlaw had as yet no punishment, in particular with libels.Now was this the court created by the statute of Henry VII?Under Charles I (for we must anticipate this much) the opinionhad gained ground that it zuas, that consequently whatever itdid beyond the sphere marked out by that statute was anunlawful usurpation of jurisdiction. When the time forabolishing it had come, it was abolished on this score. Butthe general opinion seems now to be that the jurisdiction ofthis Court of Star Chamber was in truth the jurisdiction whichthe king's council had exercised from a remote. time, despiteall protests and all statutes made against it. The act of 1487constituted a committee of the council to deal with certaincrimes ; this however did not deprive the council itself of anyjurisdiction that it had. This committee seems to have beenin existence as late as 1529, for a statute of that year(21 Hen. VIII, c. 20) adds to the committee the lord presidentof the council, an officer recently created ; but before the endof Henry VIII's reign this statutory committee seems to disappear,it is merged in the general body of the council.There can, I, think, be no doubt that under Elizabeth andJames this court was regarded as perfectly legal-thoughthere may have been doubts as to how it came to be legal,and it is said that Plowden, the great lawyer, asserted that itderived all its lawful authority from the statute of Henry VII.Coke speaks of it with great respect, and does not seem toThe Star Chamber&are Plowden's doubts : ' It is the most honourable court(our parliament excepted) that is in the Christian world1.'A statute of 1562 (5 Elizabeth c. g) enumerates the King'sCourt of Star Chamber along with the Chancery as one of theknown courts of the realm. The Chancery had by this timebecome a fully recognized court of justice, administering amass of rules known as equity, and yet the origin of itsjurisdiction was as obscure as that of the jurisdiction of thecouncil in the Star Chamber: if there were ancient statutesagainst the one there were ancient statutes against the otheralso. There can, I think, be little doubt that the Star Chamberwas useful and was felt to be useful. The criminal procedureof the ordinary courts was extremely rude ; the Star Chamberexamining the accused, and making no use of the jury,prubably succeeded in punishing many crimes which wouldotherwise have gone unpunished. But that it was a tyrannicalcourt, that it became more and more tyrannical, and underCharles I was guilty of great infamies is still more indubitable.It was a court of politicians enforcing a policy, not a court ofjudges administering the law. It was cruel in its punishments,and often had recourse to torture. It punished jurors for whatit considered perverse verdicts; thus it controlled all thejustice of the kingdom. The old process of attaint, of whichwe have before spoken, had long gone o;t of use, but in theStar Chamber the jurors had to fear a terrible tribunal whichwould resent a verdict against the king.Other courts of a similar kind closely connected with thecouncil had come into existence in divers parts of England.The Council of the North was erected by Henry VIII afterthe Catholic revolt of I 536 without any act of parliamenta. Ithad a criminal jurisdiction in Yorkshire and the four morenorthern counties as to riots, conspiracies and acts of violence.It was also given a civil jurisdiction of an equitable kind, butin Elizabeth's reign the judges of the common law courtspronounced this illegal. Their doctrine seems to have beenthat without act of parliament the king might create a newInsfi/ufes, Part IV, cap. 5.See Prothero, Statutes and Consti&tionalDocuments (155-1625)~ pp. +"I-3.See Lapsley, 'The Problem of the North ' in American Historical Kmznu,vol. v, pp. 440--66 (1900).

264 Constitutiovzad History PERIODcourt to deal with matters known to the common law, butthat he could not create a new court of equity. But itscriminal jurisdiction the Council of the North maintained,and this it seems to have exercised according to the course ofthe Star Chamber.The Court of the Council of Wales seems to have arisenunder Edward IV, but its authority was acknowledged andconfirmed by a statute of I542 (34 Hen. VIII, c. 26). Itwas to have authority in Wales and the Welsh marches1.Under this latter denomination it seems to have consideredthat the four counties of Gloucester, Worcester, Hereford, andSalop, were included. We hear of protests against this extensionunder James I, and according to Coke the twelve judgesheld that these four counties were not within the scope of thecouncil's power. However, the opinions of the judges were invain : the question what was meant by the marches of Waleswas a difficult question. In considering the position of thesecourts it is desirable to remember that the old local courtshad become very useless as judicial tribunals; they could onlyentertain personal actions in which no more than forty shillingswas claimed, and forty shillings had become a small sum. Thatconcentration of justice in the Westminster courts of whichwe have so often spoken was producing evil effects-it madelitigation about small matters very slow and very costly ; inmany instances it must have amounted to a denial of justice.So there was room enough for new local courts. Men ingeneral seem to have been very willing that these new localcourts should exist, and the opposition of the commonlawyers was to a large extent a selfish professional opposition,though it served in course of time to maintain the authorityof parliament against stretches of the prerogative.There was, however, one new court of great importance,whose powers they were inclined rather to magnify than tominimize-this was the Court of High Commission1. Timedoes not permit us to investigate the great religious changes ofour period ; but, of course, the Reformation has an importantFor further information see Miss C. A. S. Skeel, The Council ilz the Marchesof Wales (London, 1904).For the High Commission Court see Frathero, Statutes and CorzstitzttionalDocuments, Intr.11 I The Court of High Commission 265legal side, it is effected by acts of parliament. The measuresof Henry VIII and those of Edward VI placed the churchunder the headship of the king, he was recognized as headof the church. These measures were repealed by Mary. Most,but not all of them, were revived by the Act of Supremacy(I Eliz. I); she did not revive the act which asserted theking's heads,hip of the church1. The ecclesiastical courtscontinued to exercise their jurisdiction, but above them wasraised a court of royal commissioners. The Act of Supremacyempowers the queen to appoint any number of persons, beingnatural born subjects, to exercise under Her Majesty allmanner of jurisdiction in anywise touching ecclesiasticalmatters. The words of the act (sec. 18) are extremely large,and the commissions issued under it became wider and wider.In 1583 the power of the commissioners has become veryample-there were forty-four commissioners, most of themlaymen. In many matters affecting religion they had a discretionarypower of fine and imprisonment ; these powerscould be exercised by any three members of the body, one ofthem being a bishop. Now this court had a distinctly statutoryorigin ; there could be no ground whatever for questioning itslegality. But in this instance the common lawyers were 3nthe side of the crown ; if they disliked the perogative whenit interfered with the course of thecommon law, they magnifiedit when exercised about ecclesiastical matters ; they were gladenough to see their old rival, the spiritual jurisdiction, thehumbled servant of the temporal power; they held that soabsolute was the royal supremacy over all religious affairs,that even the ample words of the Act of Supremacy did not,express its full extent ; the high commissioners might dothings that were not expressly authorized by the statute book.A little later, the lawyers, or at least some of them, turnedround. Coke held that the act of Elizabeth did not give thecommissioners power to fine or imprison the laity-the soleweapons that it could use were the old ecclesiastical weaponsof censure, penance, excommunication. However, this powerwas de fncto maintained, and was largely and oppressively' For Elizabeth's title see Maitland, Defnder of the Faitlr, a d so forth,ErzgZzsh Historical Revtew, Jan. I goo.

266 Co~zst itutional HistoryPERIODused under Charles I. To whatever quarter we look we seethat he inherited a great number of difficulties in churchand state-lawyers and parliaments were beginning to call inquestion the legality of the institutions whereby the Tudorshad governed the country.Again commissions had been exercised for the trial ofoffenders by martial law. In tracing their history we have tonotice a verbal confusion. From a very early time the king'sconstable and marshal1 were the leaders of the king's army.These offices became hereditary and of no very great importance.However, as late as Edward I, it is the fact that Bohunand Bigod are the constable and marshall, which enables themto paralyze the king, by refusing to lead the army to France.The marshall's office is still in existence ; the Duke of Norfolkis Earl Marshall of England. The constable's office fell intothe royal family on the accession of the House of Lancaster-occasional grants of the office were made ; but afterHenry VII's time, the office seems only to have been grantedfor special occasions. Now as leaders of the army the constableand marshal1 seem to have had jurisdiction over offencescommitted in the army, especially when the army was inforeign parts, and in the fourteenth century we hear complaintsof their attempting to enlarge their jurisdiction. Now as amatter of etymology, ~narshall has nothing whatever to do withmartial-the marshal1 is the master of the horse-he is~izat8escnllz~s, mavesckalk, a stable servant-while of coursemartial has to do with Mars, the god of war. Still, whenfirst we hear of martial law in England, it is spelt indifferentlymarshall and ~rzartial, and it is quite clear that the two wordswere confused in the popular mind-the law administered bythe constable and marshall was martial law. Towards the endof the Wars of the Roses we find very terrible powers ofsummary justice granted to the constable. In 1462 Edward IVempowers him to proceed in all cases of treason, ' summarilyand plainly, without noise and show of judgment on simpleinspection of fact.' A similar patent was granted to LordRivers in 1467. They show something very like a contemptfor law-the constable is to exercise powers of almost unlimitedextent, all statutes, ordinances, acts and restrictions toMartial Lawthe contrary notwithstanding. This illegal tribunal, for suchwe may well call it, came to an end after the accession of theHouse of Tudor-the king had no need of it ; but an evilprecedent had been set. Mary seems to have executed someof those taken in Wyatt's insurrection without regular trial.In I 588, when the Armada was approaching, Elizabeth issueda proclamation declaring that those who bring in traitorouslibels or papal bulls against the queen, are to be proceededagainst by martial law. In 1595 there had been riots inLondon; the queen granted a commission for trying andexecuting the rebels according to the justice of martial law.There seems to be another precedent for such a commissionin 1569, after the insurrection of the northern earls, when sixhundred persons were, it is said,executed by the Earl of Sussex.James on several occasions issued such commissions : in 1617,1620,1624; they empower the commissioners to try men by thelaw called the law martial-even those who have been guiltyof ordinary felonies. There can, I think, be no doubt that,according to the opinion of the lawyers of the time, suchcommissions were illegal. The government may put downforce by force-but when there is no open rebellion, or whenthe rebellion is suppressed, it has no authority to direct thetrial of prisoners, except in the ordinary courts and accordingto the known law of the land. As to what was this 'law calledmartial law' we know little, and probably there is little to beknown ; it meant an improvised justice executed by soldiers.It may seem to us very strange that there should havebeen in full play tribunals, the legality of which was veryquestionable, and other tribunals, the illegality of which couldhardly be questioned. Why, we may ask, was not the questionraised in some court of common law? The answer seems tolie, at least partly, in the fact that the judges of the courts ofcommon law were very distinctly the king's servants. It isneedless to accuse them as a class of any disgraceful subserviency,though some of them were disgracefully subservient-but past history had made their position difficult. The kingwas the fountain of all justice; they were but his deputiesthiswas the old theory, and to break with it was impossible.To hold, not that some isolated act of royal authority was

268 Constitationad History PERIODillegal-but that the government of the country was beingregularly conducted in illegal ways-this would have been ahard feat for the king's servants and deputies. The positionof affairs may be best illustrated by some episodes in the careerof one who has left his mark deep in the history of our law.Edward Coke was born in 1552, and died in 1634. Hisbooks, which were soon treated as venerable authorities,consist of the Institutes in four parts-the first the celebratedcommentary on Littleton's Tenures (1628), the second acommentary on various statutes ranging from Magna Cartato James I, the third an account of the criminal law, thefourth a treatise on the various courts (all published in1641 and therefore posthumous)-and thirteen volumes ofReports (the first eleven, 1600-1615, the last two posthumous)-andthere are some minor works. Certainly he wasa very learned man: he knew his Year Books at a timewhen such knowledge was becoming uncommon-and bygiving the results of his learning in English instead of debasedFrench, he made himself for ages an ultimate authority aboutall matters of medieval common law: we are but slowlybeginning to find out that he did not know everything. InI 593 he became Solicitor-General, in I 594 Attorney-General,in 1606 Chief Justice of the Common Pleas. We soon findhim in opposition to the king. In 1605 Archbishop Bancrofthad complained of the interference of the common law courtswith the ecclesiastical tribunals ; the former were constantlyissuing in the king's name prohibitions forbidding the courtsChristian from entertaining cases which,as the common lawyersmaintained, belonged to the lay courts. The king wasinclined to take the archbishop's side : he sent for the judges,told them that they were his delegates, and that it was forhim to decide to which court cases should go. ' Then ' (thisis Coke's account) 'the king said that he thought the law wasfounded upon reason, and that he and others had reason aswell as the judges. To which it was answered by me thattrue it was that God had allowed His Majesty excellentscience and great endowments of nature ; but His Majestywas not learned in the laws of his realm of England andcauses which concern the life or inheritance or goods or111 Edwnrd Coke 269fortunes of his subjects ; they are not to be decided by naturalreason, but by the artificial reason and judgment of law,which law is an act which requires long study and experiencebefore that a man can attain to the cognizance of it; and thatthe law was the golden met-wand and measure to try thecauses of the subjects, and which protected His Majesty insafety and peace. With which the king was greatly offended,and said that then he should be under the law, which wastreason to affirm, as he said. To which I said that Bractonsaith pod Rex non debet esse sub Lomine set sub deo et Zege1.We see these old words of Bracton doing service againand again. The judges seem even to have told the king thatno king after the Conquest had ever taken on himself to givejudgment: if they said so, they said what was certainly untrue;but we see that it was difficult to assure James I that he wasnot in fact, what he was according to admitted theory, thehighest judge in his realm.Coke's next exploit is in 161 I, when he and his brethren inthe Common Pleas held that the Court of High Con~missionhad no power to fine and imprison. The question turned onthe meaning of the section in the Act of Supremacy, to whichreference has already been made. The Common Pleas heldthat the Commission which authorized the infliction of fineand imprisonment was not itself authorized by the statute.The judges of that court, and those of the other two courts,were summoned before the council and examined seriatim.Coke refused to give way; but the other judges were notunanimous. The king promised that a less objectionable formof commission should be issued ; and a new commission wasissued with Coke's name in it-but he refused to sit, as hewas not allowed to see the commission.As regards the impositions of customs dues. The Court ofExchequer held this to be legal, and Coke agreed that it waslegal if the imposition was intended for the good of the public,and not merely for the increase of the revenue. As regardsthe validity of proclamations in general, he and the rest of thejudges were bolder ; they declared that a proclamation couldnot create a new offence-but of this we have already spoken.Coke, Reporfs, MI, 65.Cf. Gardlner, Ntstory ofB?zgZa~td, VO~. 11, pp. 36-9.

270 Constitutional History PERIODIn 1613 Coke was made Chief Justice of the King's Bench,seemingly in the hope that in a more exalted position he wouldprove more pliant. But the hope was vain. In Peacham's casehe objected to the judges being asked singly and apart fortheir opinions as to a matter which was to come before themjudicially. At a later day, when he was no longer a judge, heobjected to the whole practice of consulting the judges aboutsuch matters-but at this time he merely objected to theirbeing consulted one by one : as solicitor and attorney-generalhe had often himself asked the judges for their opinions.The practice, however evil it may seem in our eyes, was anold, well-established practice, and it was even possible tocontend that the judges were bound by their oaths to give theking legal advice whenever he asked for it.Then in 1615 Coke plunged into a controversy with theCourt of Chancery, in which he was decisively worsted. Forsome time past the Chancery had claimed and exercised apower of ordering a person who had been successful in a courtof law, to refrain from putting in force the judgment that hehad obtained, on the ground that he had obtained it by fraudor other inequitable means. You will understand that theChancery did not attempt to prohibit the courts of law fromentertaining or deciding causes-it claimed no supervisoryjurisdiction over them, such as the Court of King's Benchexercised over the local courts; but it did claim that if a personhad obtained a judgment by inequitable means, by fraud orbreach of trust, he might be enjoined from putting in force, fromobtaining execution. Coke rebelled against this-and seemsto have thought that anyone who went to the Chancery insuch a case was guilty of the offence created by the Acts ofPraemunire, that of going from the king's courts to anothertribunal-acts which had been directed against the judicialpower of the bishop of Rome. The matter was referred to theking, and he had the pleasure of deciding in favour of theChancery, and thus maintaining his theory that he was thesupreme arbiter when his judges differed. The victory of theChancery was final and complete-and if we were to have acourt of equity at all, it was a necessary victory.Then in 1616 came the case of the conzmendnms-BishopIII Coke's Dis~nissal 27 INeile of Lincoln had received two benefices from the king tobe held in commendam, that is to say, together with hisbishopric. An action was brought against him by two men,Colt and Glover, who contested the legality of the royal grant,and in the course of the proceedings it was reported to Jamesthat the counsel for the plaintiffs disputed the royal right togrant a commendam. Coke and his fellows received ordersnot to proceed with the hearing of an action in which theking's prerogative was questioned ; they answered that theywere bound by their oaths not to regard such commands.The king sent for them, and they humbled themselves, withthe exception of Coke-from whom no more could be gotthan that if such a command came he would do what anhonest and just judge ought to do.The intractable chief justice was forthwith dismissed. ' Itis the common speech (says a contemporary) that four p's haveoverthrown him-that is pride, prohibitions, praemunire andprerogative1.' In 1620 he appears in parliament as a leader onthe popular side, and from that time until his death in 1634, didnot a little to give the great struggle its peculiar characterastruggle of the common law against the king.On several occasions during that struggle an importantpart is played by the writ of habeas corpus. We had bettertherefore see what that writ was, and we shall have to noticethat even during the Tudor time there was considerable doubtas to its scope. From a very early time our kings had claimedto supervise all the justice of their realm. If anyone wasimprisoned it was in the king's power to inquire the cause ofthe imprisonment. We ought to carry our thoughts back toa time when England was full of private ~risons-the prisonsof lords who claimed jurisdiction by royal grant or byprescription. At the suit of an imprisoned subject the kingwould send his writ to the keeper of the gaol, bidding himhave the body of that subject before the king's court, toundergo and receive what that court should award. Ashappened in many other cases, this prerogative of the kingcame to be regarded as the right of the subject. During theGardiner, Efisto~y ofE1~gla7td, vol. III, pp. 25-6.

Co~zstitzctio~znd History The Writ of Habeas Corpus 273later Middle Ages a writ of habeas corpus seems to have beengranted in the royal chancery almost or quite as a matterof course; there were clerks very willing to increase theirbusiness, and there were judges very desirous of amplifyingtheir jurisdiction. When the three courts of common lawhad become separate, this work of investigating the causeof an imprisonment belonged most properly to the King'sBench; but by means of fictions the other two courtsfollowed its example, and issued and adjudicated upon writsof habeas corpus.We ought further to know some little as to the imprisonmentof persons accused, but not yet convicted of crime. Ourearly law seldom kept a man in prison before trial if he couldfind pledges, if he could find persons who would undertakefor his production in court. According to Glanvill it is onlyin cases of homicide that it is usual to keep a man in prisoninstead of allowing him to find pledges. The law during thenext century grew somewhat stricter. The Statute of WestminsterI (1275, c. 12) defined the cases in which pledges arenot to be allowed-persons taken for the death of a man, orby commandment of the king or of his justices, or for forestoffences, or for certain other causes, are not to be replevied.This statute determined what offences are replevisable andwhat not until 1826, though a considerable mass of interpretationgrew up around it, and certain particular offences werefrom time to time specially dealt with by statute. In I275the work of bailing or replevying prisoners was still done bythe sheriff; gradually his powers in this respect were transferredto the justices of the peace. A person who felt himselfaggrieved by the refusal of the sheriff or the justices of thepeace to let him find pledges could by means of the writ ofhabeas corpus bring his case before one of the common lawcourts. These courts had also exercised a power of bailingprisoners whom the sheriff or the justices of the peace couldnot set free: for instance, the sheriff and justices of the peacecould not set a man at liberty if he was accused of treason orof murder-they were distinctly forbidden to do so by theStatute of Westminster-but the King's Bench did notconsider that the Statute limited its power of allowing bail,and it exercised a discretionary power of bailing even accusedtraitors and murderers.We ought to notice, even though we cannot afford toexplore the matter to the bottom, that there was a somewhatsubtle distinction between replevying a prisoner and bailinga prisoner: both processes had much the same practicalresult-but the distinction gave ground for the contentionthat the power of bailing exercised by the King's Benchwas not limited by the Statute of Westminster, which merelyforbad sheriffs and others to replevy persorls in certainparticular cases. Now this small point became of greatimportance: one of the cases in which a man was not to bereplevied was that of a person imprisoned by the commandmentof the king: could then the courts of common law baila prisoner who was imprisoned by the king's commandment?In the reign of Charles I, when the power of the council tocommit to prison was the subject of hot controversy, it wasasserted by the king's advocates, denied by the parliamentarians,that the power of the King's Bench was restricted bythe Statute of Westminster. The argument of the king'sopponents took this form-the court's power of bailingprisoners cannot be touched by the Statute of Westminster,for in that case it would never be able to bail an accusedmurderer : but indubitably it does bail accused murderersthereforethis statute refers merely to the action of sheriffsand similar officers. But further, and this matter concernsus more directly, a number of cases were produced in whichthe Court of King's Bench had bailed prisoners, when thecause of their commitment was stated to be the king'scommand. In answer to the writ of habeas corpus, the gaolerhad returned that the prisoner was committed by the commandof the king, or by the command of the king's council, and yetthe court had liberated him upon bail. There was one clearcase of this from 1344-the lieutenant of the Tower hadreturned that one J. B. was in prison by the king's commandunder his great seal: the court let him out on bail puiavidetzcr curiae breve praedictuvz sz~scientem not2 esse causa wzpraedicti J. B. in pyiso~za yetkendi. The other cases comefrom the reigns of the Tudors and James I-in all there were,

274 Co;tzstitzztio;tzn Z HistoryPERIODeleven of them-the prisoners were liberated on bail, thoughthe gaoler returned that they were imprisoned (in some cases)by command of the king, or (in others) by command of theking's council1.It seems that in Elizabeth's reign, in 15gr or thereabouts,the judges were consulted by the council as to the power ofthe queen, and of the council, to commit to prison. We havetwo versions of the answer that they gave, the one is inAnderson, Reports, vol. I, p. 297, the other in Hallam, chap. 5.Both are singularly obscure-perhaps they are intentionallyobscure-and there is a considerable difference between them.The judges manage to evade saying distinctly whether theywill or whether they will not bail prisoners when the return tothe writ of habeas corpus simply says that the prisoner wascommitted by the command of the king or the command ofthe council. They evidently think (as it seems to me) thatthe cause of the commitment ought to be assigned, but whatthey will do, if it is not assigned, they do not say. In thestruggle of Charles's reign both parties claimed that 'theresolution in Anderson' was favourable to them: to me itseems to show that the judges of Elizabeth's day felt themselvesin a great difficulty-and the difficulty grew greater;Coke himself, when Chief Justice, held that one committedby the council was not bailable by any court in England ; heafterwards recanted his opinion in parliament, saying that hehad been misled by an inapposite precedent.It should be clearly understood that the judges of this timedid not question the power of the council to act judicially andto sentence to imprisonment,-the jurisdiction of the Court ofStar Chamber was not in debate-nor did they question thepower of the council to commit to prison persons suspectedof crime. The doubt was merely this-whether if the councilcommitted to prison, the courts of common law would beprevented from considering whether the suspected personought to be bailed-was the king's command or the commandProceedings on the Habeas Corpus brought by Sir T. Darnel and others,3 Charles I, 1627, State Trials, vol. 111, pp. 1-59. John Bilston's case(18 Edw. 111, Rot. 33) was quoted by Coke, zq March 1617, in the Commonsbut does not appear to have been cited in court, ib. p. 69.I I I Im$~ison?ne;tzt by the KGzg's Co?tzma;tzd 275of the council a sufficient answer to the writ of habeascorpus? If the return was that the prisoner was sentencedto imprisonment by the Star Chamber there would have beenno talk of setting him free ; the doubt was as to persons whohad not been tried: could the king prevent an investigation oftheir cases in a court of law, by telling the gaoler to returnthat they were imprisoned by the king's command?Taking a general survey, everywhere we see difficultiesbefore King Charles I. The system by which England hasof late been governed is a questionable system, it is beingquestioned in parliament, it is being questioned in the lawcourts. The more men look back at history (and historyis now being minutely examined for controversial purposes)the more they see that the constitution is not what it wasunder the Lancastrian kings-that the mode of governmentconflicts with unrepealed statutes, that there is at leastplausible excuse for pronouncing a great deal of it illegal.Whether a wiser man than Charles could have averted orguided the coming storm, is a question over which we maywell think ; but everywhere we see that the storm is coming.C. History of the A rmy.The last topic with which we can deal before passing to anew period is the history of the army-a matter of which wehave hitherto said too little. After the Conquest the feudaltenures had supplied the king with troops; but the feudalarray was an extremely clumsy weapon. The tenant byknight service was only bound to serve for forty days in theyear-and there was constant friction between the king andhis barons as to the conditions of the service-were theybound to serve in Normandy? were they bound to serve inGermany?-on more than one famous occasion these questionswere raised, and the embarrassed king had to make concessions.Already in 1159 Henry I1 took the first scutage,by way of composition for personal service1. It is explainedthat his object was to spare the lives of his subjects and getTraces of scutage have been found as early as the reign of Henry I. Round,Feudal Englatzd, p. 268. See MCKechnie, Maggra Carfa, pp. 86-90.

Constitutional Historyhis foreign wars fought for him by mercenaries. Towardsthe end of his reign, in 1181, he revived and reorganized theancient national force by his Assize of Arms. Apparentlythe idea of such a force had never ceased to exist; it hadnever become law that military service, at all events defensivemilitary service, was limited by the system of military tenure.Every man, according to his degree, is to have suitableweapons-even the poorest free man is to have his spear andhelmet. A national force, organized by counties, was thuscreated.Henry I11 reissued the assize in an amplified form, andit forms the base of one of his son's great statutes, the Statuteof Winchester. Its date is 1285, so there is just a centurybetween it and the Assize of Arms1. Every free man betweenthe ages of fifteen and sixty is to have armour according tohis wealth. There are five classes, ranging from him who has.415 of lands and 40 marks of goods, a habergeon, ironhelmet, sword, knife and horse, down to him who is merelyto have his bow and arrows. Twice a year the arms are tobe viewed in each hundred by two elected officers calledconstables. These provisions occur in close connection withothers enforcing tlie ancient duties of watch and ward, ofhue and cry. If this national force is to be useful againstthe public enemy, it is to be useful also for police purposes,for apprehending malefactors and the like. Its officers youwill observe are 'constables'-the title is originally a militarytitle, which spreads downwards from the king's constable,who along with the king's marshal1 arrays and leads the royalforces. Even the lowest officers in the national force becomeconstables; the constable of the township looks after thearmour of the township, above him are the constables of thehundred; they again are below the constable, the high constable(as he comes to be called) of the county. Themilitary duties of the constable of the township are fromthe first allied with the duty of keeping the peace andapprehending malefactors-the ancient village officers, thereeves, the headboroughs (chiefs of the frankpledge), becomealso the constables, and lose their older names.Select Charters, pp. 1.5~4, 469-74.111 Co?nmissions of Array 277To return. The obligation of this armed force, definedby the Statute of Winchester, to take part in war offensiveor defensive, is for a long while very indefinite. Of course itcould not be contended that the king might send every ablebodiedman out of the realm to serve in France. We findthat Edward I commissions certain of his servants to chooseout a fixed number of able-bodied men from their respectivecounties. In other words, he issues commissions of array.The forces thus levied he pays at his own cost. The troopsfrom a county are under the command of a royal cnpitanez~sor captain, in whom we may see the forerunner of the lordlieutenantof later times. The sheriff would naturally bethe head of the county force, and so in theory he remains;it is he who can raise the power of the county, the possecornitatus, for the pursuit of malefactors; but for actualwarfare an annual officer (and permanent sheriffs the countrywill not stand) is not a good commander. So the sheriffloses his military functions at a time when the institutionof permanent justices of the peace is sapping many other ofhis powers. Commissions of array become common underEdward I1 and Edward 111, and the king does not alwayspay the soldiers whom he levies-he expects the counties topay them ; the counties were required to provide arms notprescribed by the Statute of Winchester, to pay the wagesof men outside of their own area and even outside of thekingdom. Complaints of this become loud. In 1327 thecommons petition that they be not compelled to arm themselvesat their own cost contrary to the Statute of Winchester,or to serve beyond the limits of their counties, except at theking's cost. The petition was granted by statute (I Edw. 111,stat. 2, c. 5) in this modified form. 'The king wills thatno man be charged to arm himself otherwise than he waswont in the time of his (the king's) progenitors, and that noman be compelled to go out of his shire, but where necessityrequireth and sudden coming of strange enemies into therealm; and then it shall be done as hath been used intimes past for the defence of the realm.' But Edward hadto make a further concession. By statute (25 Edw. 111,stat. 5, c. 8) it is accorded and assented that no man shall be

111 Lnck of n Standing Artivy 279constrained to find men-at-arms, hobblers nor archers, otherthan those which hold by such services, if not by commonassent and grant made by parliament. Apparently thosestatutes were habitually broken or evaded. In I402 theywere confirmed by statute (4 Hen. IV, c. 13), and they seemto have been observed during the Lancastrian reigns. TheWelsh and Scottish wars of Henry VI were regarded asdefensive, resistances of invasion, and the county forces couldlawfully be called to meet them. The army whereby Henry Vwon his victories in France consisted partly of soldiersvoluntarily enlisted who had the king's wages, partly of forcesraised by lords who served the king by indenture, by specialbargain. During the Wars of the Roses both sides used theking's name for commissions of array, and the country gotthoroughly accustomed to intestine war,compulsory service, andextorted loans and benevolences. The statutes of Edward I11remained on the statute book; so did the Statute of Winchester.The Tudor despotism was not enforced by any standingarmy ; that is one of the most noticeable things in thehistory of the time. One or two hundred yeomen of theguard and a few guards in the fortresses were the onlysoldiers that the king kept permanently in his pay. Commissionsof array, however, were issued from time to time ;the counties were compelled to provide soldiers even forforeign service, and the statutes of an earlier time seem tohave been disregarded and perhaps forgotten. An importantact of 1557 (4 and 5 Philip and Mary, c. 3) takes no notice ofthe old acts, but speaks of mustering and levying men to servein the wars as a recognized legal practice, and, as it seems tome, implicitly sanctions impressment by means of commissionsof array, even impressment for foreign service. Certain offenceswhen committed by the soldiers when mustered and leviedare to be tried by the king's lieutenant, 'the lord-lieutenant' ashe is here called. The usage of appointing a permanent lordlieutenantfor each county is said to date from this reign.Another statute of this same year 1557 (4 and 5 Philip andMary, c. 2) expressly repealed so much of every statute ofearlier date as concerned the finding or keeping of horse orarmour; and it enacted a new scale of armour, which replacedthat ordained by the Statute of Winchester. But this statutewas itself repealed in 1603 by I James I, c. 25, an act whichrepealed in a wholesale fashion a large number of the Tudorstatutes. No reason is given for the repeal; Hallam suggeststhat the accession to the English throne of the king of Scotlandhad removed the chief necessity for a defensive force. But therepeal had a perhaps unexpected effect. Until 1850 it wasour law that if statute A be repealed by statute B, and thenstatute B be simply repealed by statute C, statute A is thusrevived-so the Statute of Winchester came to life once more1.Then in the days of Charles I it became rnatter of hot debatewhether the armed force which the old statutes created wasat the king's disposal. This force was just acquiring the newname of militia, and the control over the militia became one ofthe chief points of controversy between crown and parliament.Meanwhile no standing army is kept up; for foreignwarfare a temporary army is got together partly by virtueof feudal obligation, partly by voluntary enlistment, partlyby impressment. However, in James's reign we find that thetroops are not always disbanded immediately on their returnto England, and we find that commissions of martial law areissued for their governance. Thus at the end of the reign,December, 1624, there are troops at Dover. A commission isissued to the Mayor and others empowering them 'to proceedaccording to the justice of martial law against such soldiers. ..and other dissolute persons joining with them.. .as commitany robberies, felonies, mutinies or other outrages or misdemeanours... and then to execute and cause to be put todeath according to the law martialz.' Of the very questionablelegality of such commissions we have before spoken : herelet us notice that only by such means could a standing armybe held together. This, I think, has been the verdict of longexperience, that an army cannot be kept together if itsdiscipline is left to the ordinary common law. These commissions,you will observe, went far beyond matters of military1 13 and 14 Victoria, c. 21. 5.Pat. Roll, 22 Jac. I, part 4, printed in Prothero, Statutes atad Constit~ltionnlDocunzents (1559-1625), pp. 398-9.

discipline-they empowered the commissioners to try soldiers' and other dissolute ' persons for robberies and other felonies,as well as for mutinies. The difficulty of keeping a standingarmy was, as James's successors found, a double difficulty-(I) that of maintaining any discipline without having recourseto illegal commissions, (2) that of paying troops without havingrecourse to illegal modes of raising money.As regards the legality of pressing soldiers, we have thisto remember in the king's favour, and it is too often forgotten,that the legality of pressing sailors seems to have been fullyadmitted. From an early time, certainly through the fourteenthcentury, we find that the king presses sailors and pressesships for transport and for naval warfare. This is done bymeans of commissions closely similar to the commissions ofarray. But while the commissions of arraying soldiers excitedmuch opposition, and parliament was constantly petitioningabout them and sometimes succeeded in getting statutespassed limiting the king's power, the pressing of sailors andships seems not to have been a great grievance. All onehears by way of protest is that the sailors ought to be at theking's wages from the time when they are on board ship. Astatute of 1378 (2 Ric. 11, c. 4) distinctly recognizes thelawfulness of the practice-it speaks of sailors arrestled andretained for the king's service, and provides a punishment forthem if they run away. Many later statutes speak of pressingas a lawful process. There are several from the last centurywhich do so by making exceptions; in these and thosecircumstances sailors are not to be impressed. No word in thePetition of Right or the Bill of Rights is directed against thisprerogative ; the class affected by it was, I suppose, too smallto make its voice heard, or else the necessity of manning anavy was considered so great that the king's power was nevercalled in question.PERIOD IV.SICETCH OF PUBLIC LAW AT THE DEATH OFWILLIAM 111.WE pass over an exciting time, and placing ourselves atthe quiet accession of Queen Anne, we ask what have beenthe legal and permanent results of the great events-Rebellion,Restoration, Revolution. The chronological sequence ofthese events we certainly ought to know ; but we have nottime for everything, and I think that we had better adopt ananalytical rather than a historical treatment. What, then, isthe constitution in 1702 ?We can now say with some certainty that we have acomposite sovereign body-the king, lords spiritual and temporal,and commons in parlifment assembled. Let us firstlook at the constitution of each of these factors-how and bywhat right do they come to be what they are?A. Constitution of the King&$.And first of the king. His title is now a statutory title ifit be a title at all. Of course it is the opinion of a considerablenumber of persons that his title is bad ; let us attempt tounderstand their opinion. Not to go back to the MiddleAges, to the parliamentary right of the House of Lancaster,the hereditary right of the House of York, we remember thatHenry VIII came more than once to parliament for an actregulating the succession to the throne, even obtained an actenabling him in default of issue to leave the crown to whomhe would. In Elizabeth's reign it was treason to affirm thatthe succession could not be settled by act of parliament.We have seen, however, that James, by the quiet consent ofthe nation, succeeded to the crown, though, if statutes on

Constitwtiolzn Z Historysuch a matter had any validity, the succession was probablyillegal; probably Henry VIII, in exercise of a statutorypower, had preferred the issue of his younger to those of hiselder sister. There was much therefore in his own case toset James on thinking that the inheritance of the crown wasdivinely appointed and was not to be meddled with by act ofparliament. He was succeeded by his son Charles I, andwhen Charles I was murdered he was immediately succeededby his son Charles 11. I put the matter in that way becausethat was in 1702, and is even now the legal view of thematter, and we must not allow any sympathies or antipathiesto interfere with our statement of the law. In I702 it wasnot questioned that the first Charles had been murdered, andthat the second began to reign on 30 January, 1649. On29 May, 1660, the king began to enjoy his own again, but italready was his own and he had been reigning for eleven yearsand more. All the acts of the Long Parliament which hadnot obtained the king's assent were simply void. At theRestoration no statute was passed to declare them void ;they were obviously void as having been made without theroyal assent, and no repeal was necessary. In 1702 no lawyerwould have appealed to them as law, and no lawyer would doso at the present day: they have no place in our statutebook. This theory had been pressed far. On 16 March,1660, the remains of the Long Parliament had declared itselfdissolved. Elections were held without the king's writ-nodecisive measure had yet been taken for inviting Charles toEngland-and a parliament, afterwards known as ' the ConventionParliament,' consisting of a few lords and the newlyelectedcommons, assembled on 25 April. It at once proceededto enter into negotiations with Charles ; on 7 May thehouses resolved that the king should be proclaimed; on the24th he set sail ; on the 26th he landed ; on the 29th he metthe parliament. An act was at once passed declaring that theLong Parliament was dissolved (it had never been dissolved bythe king, and so there might be question as to its dissolution)and that the lords and commons now sitting at Westminsterin this present parliament are the two houses of parliamentnotwithstanding the fact that they had not been summonedThe Convention Pa rlianzentsby the king's writ. Of course, however, if the king's writ ofsummons was necessary to the legal being of a parliament,this defect could not be remedied by a parliament which hadcome together without such writ-if it was not a true parliament,its own declaration could not make it so. This ConventionParliament sat on until December, 1660, and passeda number of acts. Another parliament met in May, 1661,and this of course was summoned by the king's writ in dueform. It proceeded to pass an act confirming the acts of theConvention Parliament as though their validity might bequestionable owing to the want of the king's writ. All thereforethat was done at the Restoration was done on the theorythat Charles I1 had reigned from the moment of his father'sdeath.Passing to the events of 1688 we see that it was extremelydifficult for any lawyer to make out that what had then beendone was lawful. What had happened was briefly this. InJuly, 1688, James had dissolved parliament, so that at thecritical moment there was no parliament in existence. On5 November William landed; on I I December James fledfrom London and dropped the great seal into the Thames;on the zznd he left the kingdom. William, Prince of Orange,invited an assembly. It was rapidly got together. He summonedthe peers and such of the members of the parliamentsof Charles 11's reign (not James '11) as were in London; thealdermen of London also were summoned. This, of course,the lawyer cannot but regard as a quite irregular assembly,called by one who is not, who does not profess to be king.The assembly met on 26 December, 1688, and it advised thePrince to summon a 'convention' of the estates of the realm.In accordance with this advice he invited the lords to come,and the counties and boroughs to send representatives to aconvention on 22 January, 1689. The convention met. On25 January the commons resolved that King James I1 havingendeavoured to subvert the constitution of the kingdom bybreaking the original contract between king and people, andby the advice of Jesuits and other wicked persons havingviolated the fundamental laws and having withdrawn himselfout of the kingdom, has abdicated the government, and that

284 Co~stitutiorzal HistoryPERIODthe throne has thereby become vacant. After some hesitation,on 12 February the lords agreed to this resolution, and it wasresolved that William and Mary should be proclaimed kingand queen. On I 3 February the Houses waited on Williamand Mary and tendered them the crown, accompanied by theDeclaration of Rights. The crown was accepted. The convention,thereupon following the precedent of 1660, passedan act declaring itself to be the parliament of England, notwithstandingthe want of proper writs of summons. ThisConvention Parliament was not dissolved until early in 1690,and passed many important acts, including the Bill of Rights,which incorporated the Declaration of Rights. A new parliamentmet on 22 March, 1690, and this of course was dulysummoned by writs of the king and queen. It proceeded todeclare by statute that the king and queen were king andqueen, and that the statutes made by the convention were andare laws and statutes of the kingdom.Now certainly it was very difficult for any lawyer to arguethat there had not been a revolution. Those who conductedthe revolution sought, and we may well say were wise inseeking, to make the revolution look as small as possible, tomake it as like a legal proceeding, as by any stretch ofingenuity it could be made. But to make it out to be aperfectly legal act seems impossible. Had it failed, those whoattempted it would have suffered as traitors, and I do notthink that any lawyer can maintain that their executionwould have been unlawful. The convention hit upon theword ' abdicated ' as expressing James's action, and, accordingto the established legal reckoning, he abdicated onthe I I December, 1688, the day on which he dropped thegreat seal into the Thames. From that day until the daywhen WiIliam and Mary accepted the crown, 13 February,1689, there was no king of England. Possibly the conventionwould better have expressed the truth if, like the parliamentof Scotland, it had boldly said that James had forfeited thecrown. But put it either way, it is difficult for a lawyer toregard the Convention Parliament as a lawfully constitutedassembly. By whom was it summoned? Not by a king ofEngland, but by a Prince of Orange. Even if we go backIV LcgnZity of the RevoZutiorz 285three centuries we find no precedent. The parliaments of1327 and of 1399 were summoned by writs in the king's nameunder the great seal. Grant that parliament may depose aking, James was not deposed by parliament; grant thatparliament may elect a king, William and Mary were notelected by parliament. If when the convention met it was noparliament, its own act could not turn it into a parliament.The act which declares it to be a parliament depends for itsvalidity on the assent of William and Mary. The validity ofthat assent depends on their being king and queen ; but howdo they come to be king and queen? Indeed this statutevery forcibly brings out the difficulty-an incurable defect.So again as to the confirming statute of 1690.Do not think that I am arguing for the Jacobite cause.I am only endeavouring to show you how much purely legalstrength that cause had. It seems to me that we must treatthe Revolution as a revolution, a very necessary and wiselyconducted revolution, but still a revolution. We cannot workit into our constitutional law.Passing from this point, we notice that the tender of thecrown was made to William and Mary jointly ; but Williamhad refused to reign merely in his wife's right-such as it was-and the declaration of the convention was that William andMary were to hold the crown during their joint lives and thelife of the survivor of them, that, however, the sole and fullexercise of the regal power was to be in William during theirjoint lives, but was to be exercised in the names of Williamand Mary, and that after their deceases the crown should goto the issue of Mary, and in default of her issue to thePrincess Anne and the heirs of her body, and for default of .such issue to the heirs of the body of William. The Bill ofRights, passed in 1689, confirmed this settlement, adding aclause to the effect that any person who should hold comnuniion with the See or Church of Rome or profess the Popishreligion or marry a Papist should be incapable to inherit,possess or enjoy the crown and government of the realm, andthat the crown should pass to the person next entitled. In1700, after the death of Mary, William being childless, andAnne's son the Duke of Gloucester being dead, it became

ConstitutionaZ Historynecessary to make a further settlement, and by the Act ofSettlement (12 and 13 Will. 111, c. 2) it was ordained thatin default of issue of Mary, Anne, and William the crownshould go to the Princess Sophia of Hanover and the heirs ofher body being Protestants. She, a daughter of ElizabethQueen of Bohemia, a daughter of James I, was the nearestheir according to the ordinary rules of inheritance, if RomanCatholics were excluded.A new form of coronation oath has been provided. Aboutthe coronation oath there has been controversy. In the reignof Charles I it became known that the king had taken an oathwhich differed in some respects from the ancient form. Thatancient form has come before us already. In it the kingpromised to hold and keep the laws and righteous customswhich the community of the realm shall have chosen-qzrasvulgus elegerit, lees qzdels la communaz~te de vostre roiaume auraesleu. Now at Charles's coronation the last question put tohim had been this: 'Will you grant to hold and keep thelaws and rightful customs which the communalty of this yourkingdom have, and will you defend and uphold them to thehonour of God as much as in you lieth ?' This form, you willobserve, does not assert the right of the people, the communityof the realm, to choose its own laws : the king is to hold andkeep the laws which the communalty has. Archbishop Laudwas accused of having tampered with the oath. His defenceseems on this point to have been quite sound. He hadadministered the oath in the terms in which it had cometo him, the terms to which James I had sworn, the termsto which Elizabeth had sworn. As to Mary's oath I knownothing; but a change had been made on the occasion ofEdward VI's accession. He had sworn to make no new lawsbut such as should be to the honour and glory of God and tothe good of the commonwealth, and that the same should bemade by consent of his people as hath been accustomed.But a change seems to have been made yet earlier. Thereis extant a copy of the coronation oath in which alterationshave been made in the handwriting of Henry VIII1. The lastA facsimile of the oath with Henry's corrections is given in ZttgZisA CoronalionRecords, ed. L. G. Wickham-Legg, pp. 240-1.The Coronatiofz Oathclause reads thus-I will note the changes made by the king'sown hand-' And that he shall graunte to hold the laws and[approvyd] customes of the realm [lawfull and nott prejudicialto his Crowne or Imperial1 duty], and to his power kepe themand affirm them which the [nobles and] people have madeand chosen [with his consent].' The interpolations are veryremarkable: they seem to point to the notion of an indefeasibleroyal power which laws cannot restrain; the king will notbind himself to maintain laws prejudicial to his crown. Thussince the accession of Edward VI the terms of the oath seemto have varied-and Laud, I believe, successfully showed thathe could not be charged with any insidious alterations1.But the meaning of the more ancient form, the form ofEdward 11's oath, now became a subject of bitter controversy;it was maintained that the elegerit-' qzras vukz~s elegerit '-could not refer to the future: the kings are to uphold theold law, the law which the people had chosen, not the lawswhich the people should choose. On the other hand, it waseven urged that the terms of the oath excluded the king fromall share in legislation-that without perjury he could rejectno bill passed by two Houses. Neither contention wouldharmonize with past history; on the one hand the old oathwas a not indistinct declaration that there were to be no lawssave those chosen by the community of the realm; on theother hand the contention that the king was no part of thecommunity was wild. However, when such opposite viewswere taken of the king's obligation, the time for war hadcome.The oaths of Charles I1 and James I1 seem to have beenjust those which Charles I had taken. Immediately after theRevolution a new oath was provided by a statute (I Williamand Mary, c. 6) which recites that the old oath was framed indoubtful words and expressions with relation to ancient lawsand constitutions at this time unknown. The most importantphrase is this-the king promises to govern the people ofEngland and the dominions thereto belonging according tothe statutes in parliament agreed on, and the laws and customs1 The question is discussed by J. Wickham-Legg, The Coro~tation Order ofKilzgJames I, London, 1902, pp. xcvi-cii.

288 Constitzttio~znd History PERIODof the same ; thus ' the statutes in parliament agreed on ' takethe place of leges quas vu&z~s elegerit.By another clause in the oath the king has to swear thathe will maintain to the utmost of his power the true professionof the gospel and the protestant reformed religion establishedby law, and preserve unto the bishops and clergy of the realmand the churches committed to their charge, all such rightsand privileges as by law do or shall appertain unto them.Another obligation is laid upon the king by the Bill of Rightsand by the Act of Settlement: on the first day of his firstparliament he must make the declaration against transubstantiation,the invocation of the saints and the sacrifice of themass. The clauses which deprive him of his crown in case heholds communion with the Church of Rome or marries a Papist,have already come before us.B. Constitzbtion of Parliament,We turn to speak of the composition of parliament. Thenumber of the lords spiritual, the mode of their appointment,has not been changed : they are now a small minority in theUpper House. But though we have here to chronicle thatthings are as they were, still we must remember that therehas been a period during which the bishops have had no placein parliament. The royal assent to an act excluding them wasgiven on 13 Feb. 1642-this was one of the last concessionsextorted from Charles. They were not restored by theConvention Parliament, but were restored by the secondparliament of Charles I1 in 1661. They took their seats on20 Nov., after an interval of nineteen years.The number of temporal peers has greatly increased. ToElizabeth's last parliament, 1597, 56 were summoned. ToJames's first parliament, 1604, 78. To the first parliament ofCharles 1, 97. To the parliament of 1661, 142. To that of1685, 145. The grant of a peerage has been used as a politicalreward. As to the mode of creating peers there is little to beadded to what has already been said. It has, however, beendecided that a peerage cannot be bound up with the possessionof a tract of land ; peerage by tenure is regarded as extinct.Also it has now become the quite definite rule that a summonsI v The House of Lords 289by name to parliament, followed by an actual sitting, confersa hereditary peerage. However, for a long time past all peershave been created by letters patent.Here again we have to remember that there has been ashort breach of continuity, not indeed in law, but in fact.During the Civil War the number of lords who attendparliament is small-it becomes thirteen or thereabouts. Onthe eve of the king's trial on 4 Jan. 1649, the commons votedthat 'the commons of England in Parliament assembled dodeclare that the People are under God the original of all justpower, and that whatsoever is enacted or declared for law bythe commons in Parliament assembled, hath the force of law... although the consent and concurrence of the King or Houseof Peers be not had thereunto.' On 6 Feb. the lords sat forthe last time. On 19 March the commons passed an act forabolishing the House of Peers. On 25 April, 1660, the lordsreappear once more in the Convention Parliament, after aninterval of eleven years. Their case must be distinguishedfrom that of the bishops. The bishops were deprived of theirseats by a statute passed by king, lords and commons; itrequired a statute to recall them: the temporal lords wereexcluded simply by the act of the commons, an act which sosoon as the Restoration was agreed on, was regarded simplyas null and void.The numbers of the House of Commons have grown. Inthe first parliament of James there were 467 members. In theLong Parliament (1640), 504. In the parliament of 1661, 507;in 1679, 513. The causes of the increase have been various.In 1672 a statute admitted two knights for the County Palatineof Durham, and two citizens for the city. Except in thisrespect the representation of the counties remains unaltered.We have seen that under Edward VI, Mary, Elizabeth, andJames, the number of borough members was increased byroyal charter-thus it was hoped that a House favourable tothe crown might be returned. Charles I added, or restored,I think, eighteen borough members'. Charles I1 exercised'Restoration' is the right word. The nine boroughs restored to parliamentaryrights under Charles I were however restored by resolution of the commons notby royal charter. Porritt, The Unreforf~zed Parlia?>ze?rt, vol. r, p. 382.

Co~zstitz.ttio~zaZ Historythis prerogative but once, he gave Newark two members.This is the last exercise of this prerogative, and it did notpass quite unquestioned. For a long time past the commonshad looked jealously on this power. They had claimed tothemselves the right of deciding whether a borough had theright to send members-and most of the additions made byCharles I to the I-Iouse were by way of reviving boroughswhich, according to the decision of the House, had oncereturned members, but had discontinued the practice of sendingthem. The right to send members was now becoming acoveted right, and boroughs sought to show that they hadexercised this right in remote times. The representation ofthe two Universities is due to James I. The prerogative ofincreasing the number of borough members was never takenaway-but it was last exercised in favour of Newark in 1677-and after the Restoration the House of Commons wouldhave resented its exercise: though it is clirious to observe thatthe excellent whig, John Locke, agreed that if the House wouldnot reform itself, the king might reform it1. Thus the numberof mdmbers became finally fixed at 5 13 ; 24 for Wales, 80 for theEnglish counties, 4 for the Universities, the rest for the Englishboroughs ; these, with the 45 Scottish members added underAnne, and the IOO Irish members added under George 111,brought up the total to 658. This was the number in 1832.Though from the legal point of view this is no precedent,still we do well to observe that in the parliament of 1656, thethird of Cromwell's parliaments, Scotland and Ireland arerepresented2. It consists of 459 members: 375 English, 24Welsh, 29 Scottish, 31 Irish.The electoral qualifications remain what they have been. Inthe counties the electors are still the forty-shilling freeholders.In the boroughs there is the utmost variety. On the whole,the tendency has been towards vesting the right to elect representativesin an oligarchic governing body. In many casesthe crown procured a surrender of an old charter and granted1 Civil Gover?zt~ze?zt, c. XIII.Irish and Scottish members sat in the Barebones Parliament (1653) andagain, in accordance with the provisions of the Instrument of Government, in theParliament of 165~.I v Borough Charten 29 Ia new. Under Charles I1 a plan was conceived for hasteningthis process. An attack was made on the charters of the cityof London, and they were declared to be forfeited. It wasa principle of law that if a charter was abused it was forfeited,and it was alleged that the citizens of London had in somenot very important respects abused their corporate powers.Their charter was declared to be forfeited. In terror at thisjudgment many of the boroughs of England surrendered theircharters, and received new charters vesting the right of electionin governing bodies nominated by the king1. By these meansJames I1 obtained a very subservient parliament. After theRevolution-in 1690-the judgment against the city ofLondon was declared void by statute. Some of the boroughswhich had surrendered their charters and taken new ones, gotback their old charters on the ground that the surrender wasunlawful, but this was not always the case-in some instancesthe surrenders were adjudged lawful. Altogether, therefore,the constitution of very many boroughs had become oligarchic.After the Revolution many of them fall under the influence ofgreat land-owners and become pocket boroughs. Already inWilliam's day the distribution of seats presents many of thoseanomalies which are abolished in 1832. Shortly after theRevolution Locke wrote thus-'We see the bare name ofa town, of which there remains not so much as the ruins,where scarce so much housing as a sheep-cote, or moreinhabitants than a shepherd is to be found, sends as manyrepresentatives to the grand assembly of law makers as a wholecounty, numerous in people and powerful in riches. Thisstrangers stand amazed at2.'The power of determining all questions as to contestedelections, the House of Commons has now got into its ownhand-and it jealously resents any interference by the king,the House of Lords, or the courts of law. Too often itsdecision is simply the result of a party division.As to the qualification of those elected. The act ofHenry V is still on the statute book, and it requires that theknights and burgesses shall be resident in the shires and townsPorritt, vol. I, pp. 393-6, 399-405.Civd Goverrtmertt, c. xIlr.

292 Constitu t ional History PERIODwhich they represent; it will not be repealed until 1774, butsince the days of Elizabeth it has been habitually disregarded.There is no property qualification-though we are on the eveof getting one-for in 1710 (9 Anne, c. 5) a statute is passedproviding that a knight of the shire must have an estate ofland worth A600 per annum, a burgess one worth £300,Of late there has been a great noise against the number ofplace-men in parliament-at present there is no law againstthem-but the Act of Settlement (1700, 12 and 13 Will. 111,c. 2) has lately provided 'that so soon as the House of Hanovershall come to the throne, no person who has an office or placeof profit under the king, or receives a pension from the crown,shall be capable of serving as a member of the House ofCommons.' This momentous clause never came into force:it was repealed in I705 before the House of Hanover came tothe throne. Had it ever come into play it must have alteredthe whole history of the House of Commons ; no minister ofthe king would ever have been able to sit there. Macaulaysays that the result would have been to make the House ofLords the most august of senates, while the House of Commonswould have become little better than a vestry1. The plan in1707, by a statute which still is the fundamental law on thissubject, was that the acceptance of an old office, i.e., onecreated before 25 October, 1705, should vacate the seat, butthat the office holder should be capable of reelection, while onthe other hand no holder of a new office, an office createdsince that date, should be capable of sitting at all'. The clausein the Act of Settlement, to which we have just referred, is agood reminder that our modern system of ministerial governmentis modern ; in 1700, let us repeat it, parliament ordainsthat there shall be no ministers in the House of Commons.C. Frequency and Duration of Parlinnzents.And now as to the frequency of parliaments. It isimpossible to speak in general terms ; each parliament of thetime that we are surveying has its own very peculiar history.The first parliament of Charles I met on 17 May, 1625, andHistory of En~Zand, c. XIX.New offices have however been created by subsequent statutes to which thisdisability does not attach.I v Fveque~zcy of Parliaments 293was dissolved on 12 August, the commons protesting, and nogrant of tonnage and poundage having been made. The secondparliament met on 6 February, 1626, and was dissolved on15 June without passing a statute; the king was at issue withboth Houses as to their privileges. The third parliamentmet bn 17 March, 1628, and sat until 26 June, when it wasprorogued. It sat a second time on 20 January, 1629, andwas dissolved on 10 March. To its first session we owe thePetition of Right. Then for hard on eleven years there is noparliament. The fourth (a short) parliament met on 13 April,1640, and was dissolved on 5 May-after less than a month ;the king had got no supply. On 24 September Charles hadrecourse to a nzagnuvn concilium of peers held at Yorkthelast occasion on which such a body has met-but gotnothing from it, save advice to summon a parliament. Onewas summoned; it met on 3 November, 1640, and becamethe Long Parliament. We may say that it remained in legalbeing for twenty years, that it was never lawfully dissolved untilin 1660 a statute of the Convention Parliament declared itsdissolution. But we may rapidly trace its history. It met on3 November, 1640, and sat on steadily until 22 August, 1642,when the king's standard was raised at Nottingham, and longafterwards. In the meantime, however, before the war brokeout, not only had it procured the attainder of Strafford, the exclusionof the bishops from the House of Lords, the abolitionof the Star Chamber; but further two acts were passed whichparticularly concern us here. In the first place on I 5 February,1641, the royal assent was obtained to the Triennial Act6 Car I c. I). This enacts that a parliament shall be heldin every third year; if the Chancellor does not issue writs, thenthe peers are to meet and issue writs for the election of therepresentatives of the commons, and if the peers ~nake default,then the sheriffs and mayors are to see to the election. Noparliament, again, was to be dissolved or prorogued withinfifty days after its meeting. The old statutes of Edward 111which directed that a parliament should be held in every yearor more often if need be were not repealed1. But a more' Gardiner, Constittrtional Documents of the Ptdrifa,r Revolution, 2nd ed.,PP. '44-55.

Tyienlzind Actmomentous concession was extorted on 17 May, 1641 ; theking gave his assent to a bill which declared that the presentparliament shall not be dissolved unless it be by act ofparliament to be passed for that purpose; nor shall it beprorogued or adjourned unless by act of parliament, and thehouses shall not be adjourned unless by themselves or theirown order. Thus the parliament provided that it shouldcontinue to exist during; its own good pleasure. It continuedsitting during the Civil War, after 1649 as a parliament withoutlords. On 7 December, 1648, the army which had becomemasters of England, violently expelled (Pride's purge), or asthe phrase went, 'secluded' the majority of the house, ahundred and forty-three members of the Presbyterian party.The Rump that was left at once proceeded to erect a court ofjustice for the king's trial. This Rump of the Long Parliamentwent on sitting until 20 April, 1653-in 1651 it had votedthat it would continue sitting until November, 1654-butmeanwhile Cromwell put an end to its prating.On 4 July, 1654, there appears the collection of personsknown as the Little Parliament or Barebone's parliament-140 persons, not elected by the country, but nominated by thecouncil of officers ; it sat until I 2 December, and then dissolveditself On 3 September, 1654, met the second of Cromwell'sparliaments, if we reckon the Rarebone's assembly as thefirst ; it was a body of 400 elected members, elected accordingto a scheme settled by the Long Parliament in 1650; therewas some redistribution of seats, and the county franchise wasextended to any persons having real or personal property tothe value of £200. On 22 January, 1655, Cromwell dissolvedthis body. His third parliament met on 17 September, 1656 ;it offered him the kingly title which he refused ; it institutedan upper house consisting of his nominees, and then fellquarrelling as to whether this was a House of Lords. On4 February, 1658, he dissolved it; on 3 September he died.Power had been given him to appoint a successor to the officeof Lord Protector, and it seems that he had appointed his sonRichard, though by no formal instrument. On 27 January,1659, a parliament met ; the military council of officers couldnot get on with it, and on 22 April Richard dissolved it. On7 May the officers restored the Rump, the members of theLong Parliament not excluded in 1653 ; again they wereexpelled, and again they were restored-the secluded membersreturned. On 16 March, 1660, this Long Parliament passeda bill declaring itself dissolved, and taking order for theholding of a new parliament on 25 April.That parliament was the Convention Parliament, and ofsome of its doings we have already spoken. With the king'sassent, for Charles was restored in May, it passed an actdeclaring the dissolution of the Long Parliament ; it wasdissolved on 29 December, 1660. Charles's second parliamentmet on 8 May, 1661, and was not dissolved until 31 December,1678, having thus sat between seventeen and eighteen years.During this time it held sixteen sessions. Really it was amuch longer parliament than what is called the Long Parliament-whichhad not sat thirteen years before Cromwellpacked it off, though it maintained a notional existence forseven years longer. On 6 March, 1679, Charles's thirdparliament met; it was prorogued in May, dissolved in July.His fourth parliament met on October 17 in the same year,but did not sit for business until October, 1680; it sat untilJanuary, 1G81, when it was dissolved. The fifth and last isthe Oxford Parliament, which met on 21 March, 168r : satbut for a week and was then dissolved. From March, 1681,until his death in February, 1685, Charles reigned without aparliament. But we must go back for a moment. We haveseen that the first act of the Long Parliament (16 Car. I, c. I)was a Triennial Act (1641), which provided machinery for theassembling of a parliament once in every three years : if the,king neglected to summon it, it would meet without hissummons. In 1664 this act was repealed as being in derogationof the king's just rights. Instead thereof it was enacted(16 Car. 11, c. I) that the sitting and holding of parliamentshall not be intermitted or discontinued above three years atthe most-but no machinery was provided for the assemblingof a parliament in case the king should neglect his statutoryduty of calling one. It supersedes, we may say, though itdoes not repeal the acts of Edward I11 as to parliament beingheld once in every year, or more often if need be: it is the

Cotzstitutio%aZ Historyking's statutory duty to call a parliament together once atleast in every three years, but if he neglects to do thisthere is no lawful manner in which a parliament can cometogether. Twenty years afterwards Charles 11, as we havejust seen, violated the act. He dissolved the Oxford Parliamentin March, 1681, and had not summoned another whenhe died in February, 1685.James held but one parliament; it met 19 May, 1685,held two sessions in that year, was prorogued on 20 November,1685, and never sat again for business, though it was notdissolved until July, 1687.We have already spoken of the Convention of 22 January,1689, which became the first parliament of William and Mary.One of the clauses of the Declaration of Rights incorporatedin the Bill of Rights declared that for redress of grievances,and for the amending, strengthening and preserving of thelaws, parliaments ought to be held frequently. The TriennialAct of 1664, however, was left standing. The second parliamentmet on 20 May, 1690 ; it held six sessions and wasdissolved in the autumn of 1695. Meanwhile it had passedanother Triennial Act-carefully to be distinguished fromthe acts of 1641 and 1664. It was passed in 1694 (6 and 7William and Mary, c. 2). This act was directed not so muchagainst intermissions of parliament, though it repeated whatwas already law, namely, that a parliament shall be holden oncein three years at least, but against long parliaments : no parliamentis to endure for more than three years-it is then to diea natural death. As to this present parliament, it is to ceaseon I November, 1696. William dissolved it when it was justabout to expire. William had rejected this Triennial Act in1693 ; this is one of the last instances of the royal assentbeing withholden. It remained in force until the SeptennialAct was passed in 1715 (I Geo. I, st. 2, c. 38). William methis third parliament in November, 1695 ; it sat again in 1696and 1697. Another met in 1698, and sat again in 1699 and1700. A fourth met in 1701, and was in existence on 3 March,1702, when the king died. I think that in the whole course ofEnglish history it had only once happened that a reigningking had died during the existence of a parliament-he wasIV Pardiametzt and Dettzise of the Crowirz 297Henry IV1. It had, however, been accounted well-settled lawthat the king's death, the demise of the crown, would dissolveparliament ; just as it would deprive the judges and all officersof state who held their comtnissions from the king of theirpowers. But shortly before William's death, in 1696, anact had been passed to obviate this evil result-if the presentking dies when there is a parliament, it is to continue inexistence for six months, unless sooner dissolved by hissuccessor ; if there is no parliament when he dies, the lastparliament is to come together and be again a parliament.The grave possibility of a disputed succession led to this act.It applied only to the case of King William; in I707 (6 Anne,c. 41, sec. 4) the rule was generalized. In 1867 (30 and 31Vic. c. 102, sec. 5 I) it was enacted that the demise of the crownshould have no effect on the duration of parliament, and thusthe rule as to six months was abolished.It will be needless hereafter to speak of the actual durationof parliaments. Since the Revolution the principle thatparliament shall sit in every year, has been secured by veryefficient means which will soon come before us. This is oneof the great results of the period which is now under ourconsideration. Of the other results let us take a brief reviewunder six heads.D. The Question of Sovere&nv.The first question which a student of modern jurisprudenceis likely to ask on turning to consider a political constitutionis, Where is sovereignty? I have before now given myreasons why we should not ask this question when studyingthe Middle Ages-why we should understand that no answercan be given.Gradually, and as a result of long continued struggles, thequestion emerges, and it is not settled without bloodshed.In the middle of the century Hobbes, in his vigorouswritings, had sharply stated the theory that a sovereign theremust be-some man or body of men whose commands are laws-and though Hobbes had no great following, still this theorytold on the world. Now I think that at the outset of our1 Henly VIll and James 1 dled dur111g the existence of a parliament.

298 Constitzdtio~ad History PERIODperiod there were three claimants for sovereignty, (I) the king,(2) the king in parliament, (3) the law. As a matter of historythe claims of king and parliament certainly seem to us thebest founded. We have seen that the practical despotism ofthe Tudors had laid a terrible emphasis upon the enormouspowers of parliament-there was nothing that parliamentcould not do-it could dissolve the ancient dual constitutionof church and state, it could place the church under the king,it could alter the religion of the land, it could settle the royalsuccession, it could delegate legislative powers to the king, itcould take them away again. I think that the statesmen ofElizabeth's reign, witness Sir Thomas Smith, had distinctlyheld that king in parliament was absolutely supreme, above theking and above the law. Still for the king there was a greatdeal to be said-more, as I think, than modern writers areinclined to allow, and this even apart from those theories ofdivine right which were generally held by the monarchicalparty. Those theories, which became current under James I,we must leave on one side ; they belong rather to the domainof political philosophy, than to that of constitutional law. Itis more within our scope to observe that it must have beena hard feat to conceive of sovereignty as vested in the parliamentaryassembly. Consider how very much that assemblydepends for its constitution, for its very existence, on the king'swill. It comes when he calls it, it disappears when he bids itgo; he makes temporal lords as he pleases, he makes whatbishops he pleases, he charters new boroughs to send representatives.After all, is not this body but an emanation of thekingly power? The king does well to consult a parliamentbutis this more than a moral obligation, a dictate of soundpolicy? As to old acts of the fourteenth century, a questionof sovereignty cannot possibly be decided by an appeal toancient documents.The high-water mark of this theory is to be found in someof the judgments delivered in the Ship Money case. I willread a few sentences.Crawley, J. ' This imposition without parliament appertainsto the king originally, and to his successor @so fncto ifhe be a sovereign in right of his sovereignty from the crown.You cannot have a king without these royal rights, no not byact of parliament.Berkley, J. Where Mr Holborne supposed a fundamentalpolicy in the creation of the frame of this kingdom, that incase the monarch of England should be inclined to exact fromhis subjects at his pleasure, he should be restrained for thathe could have nothing from them, but upon a common consentin parliament : he is utterly mistaken herein. The law knowsno such king-yoking policy. The law itself is an old andtrusty servant of the king's; it is his instrument or meansthat he useth to govern his people by. I never read norheard that Zex was rex; but it is common and most true thatrex is lex.Vernon, J. The king pro bono p2rbZico may charge hissubjects for the safety and defence of the kingdom, notwithstandingany act of parliament, and a statute derogatory fromthe prerogative doth not bind the king and the king maydispense with any law in cases of necessity.Finch, C. J. No act of parliament can bar a king of hisregality, as that no land should hold of him ; or bar him of hisallegiance of his subjects; or the relative on his,part as trustand power to defend his people ; therefore acts of parliamentto take away his royal power in the defence of the kingdom arevoid ; they are void acts of parliament to bind the king not tocommand the subjects, their persons and goods, and I say theirmoney too ; for no acts of parliament make any difference1.'Now this goes far indeed, but as it seems to me, froma lawyer's point of view, the fatal flaw in it is that it does notgo far enough. If the judges had grasped the modern notionof sovereignty, the notion which Hobbes was just giving to theworld-had said the question really is, Who is sovereign?had answered boldly, ' The king is sovereign, it is to him (notto him and parliament) that this nation renders that habitualobedience which is the fact which constitiites the relation ofsubject and sovereign ; this is clear from the nation's prolongedacquiescence in breaches by the king of the plain words ofstatutes ; no act of parliament binds or can bind him, no, notState Trials, 13 Charles I, 1637, vol. 111, pp. 826-1 315.

Constitutional Historythough he himself assented to it yesterday; he is, in short,a perfectly absolute monarch.' Had they said this, it wouldhave been difficult to find any logical flaw in their judgments.The law, it might be said, cannot determine who is sovereign.But the judges, bold though their language was, shrankfrom this assertion, an assertion which must have hurried onthe Civil War. They spoke of cases of necessity-the necessityof levying money for the defence of the realm-they admittedthat the king could not of his own will impose a tax to bespent on his personal pleasures, they spoke of certain, or rathersome not very certain, royal rights as beyond the power ofstatute. ' Acts of parliament,' even Finch admitted, ' may takeaway flowers and ornaments of the crown, but not the crownitself1.' This makes their position very weak-who is to decidewhat is an ornament and what a substantial part of the crown-the notion of a constitution above both king and parliament,limiting to royal acts a proper sphere, limiting to statutesa proper sphere, was nowhere to be found expressed in anyaccurate terms, and would satisfy neither king nor nation.The contest was to he between the sovereignty of a king, andthe sovereignty of a king in parliament. We know how thecontest was decided-by the Civil War and the Revolution.Of course, however, so long as Jacobitism survived, andcertainly it survived in 1745, there survived the doctrine thatthe title of the king, and some at least of the powers of theking, are above statute. The fatal theoretic fault of Jacobitismwas that it could not say, dared not say, the king is utterlyabove all law, law is but the king's command.I have said that there was a third claimant for sovereignty,namely the law. If the lawyers of James 1's day had beenforced to consider Hobbes's theory, they would, I think, havedenied the necessity for there being any man or body of menabove the law. This, so far as one can discover it, was theposition of the great typical lawyer Coke. It is alwaysdifficult to pin Coke to a theory, but he does seem distinctlyto claim that the common law is above statute, and aboveprerogative-it assigns a place to both king and parliament,In the Ship Money case, State Trials, vol. III, p. 1235, Broom, ConstitutionalLaw, p. 363.Coke's Theoryand keeps them in it. Coke distinctly claims that the judgesmay hold a statute void, either because it is against reasonand natural law, or because it trenches on the royal prerogativex.He alleges precedents for this-cases in which statuteshave been held void. 1 do not think that they bear him out.I do not think that the judges of the Middle Ages hadconsidered themselves free to question the validity of a statuteon the ground of its being against natural law. As to theprerogative, Coke's case was somewhat stronger; and, asalready said, I take it to have been the lawyer's doctrine ofJames's time, that the courts had power to decide that a statutewas not law. If this theory had been generally accepted thejudges would have become the ultimate lawgivers of therealm-in declaring law they would have made law, which theywould have upheld even against statute. They did notexpressly claim legislative power, they did not even conceivethat this was their claim : they claimed to declare that lawlaw,common law, natural law (and this was, as we have seen,the old theory) had an existence of its own, independent of thewill of man, even perhaps of the will of God. The difficultybefore this theory was that the judges could not point out thelimits to the power of statute with any reasonable accuracy.A statute might take away flowers and ornaments of the crown,but not the crown itself. Such language is far too vague tobecome a constitutional theory, and looking back at the statutebook of the fourteenth, fifteenth and sixteenth centuries, itwas indeed difficult to find any matter with which parliamenthad not meddled. The vigorous legislation of our medievalparliaments had rendered any theory of law above king, aboveking and parliament, an unworkable doctrine. It soon perished; ,year by year events showed that the struggle lay betweensovereignty of king, and sovereignty of king in parliament.A poor relic of the theory lives on in Blackstone-the judges,he seems to think, might hold a statute void if it contravenedthe law of nature, but by Blackstone's day this had become animpracticable speculative tenet, and we may fairly say that itwas destroyed by Bentham. However, let us remember thatCoke held it.8 Rep. 118.

302 Constititiona Z History PERIODWe may then regard the seventeenth century as finallysettling the sovereignty of England in king and parliament.But we must watch this process more in detail: and we will startwith the ordaining, dispensing and suspending powers whichthe kings have claimed. We have seen that under James I thejudges, who were no enemies to the prerogative, had held thata royal ordinance or proclamation could have but an extremelylimited force-it could create no new offence-it could simplybe used as a public announcement of the law, an intimationthat the government was going to enforce the law. Here thenthe common law as declared by the judges was against theking-but practically so long as the Court of Star Chamberexisted, the last word on the matter did not rest with thejudges : that court would, and did, enforce proclamations.The proclamations of Charles I were far more numerous thanthose of his father. Prices were fixed by proclamation ; houseswere demolished, shops were shut in order that the newcathedral of St Paul might appear to better advantage; allpersons who had houses in the country were directed to leaveLondon. On 5 July, 1641, the act was passed which abolishedthe Court of Star Chamber, and with it fell the power ofenforcing proclamations. One finds it said in later law books,in accordance with the opinion of the judges of James I, thatan offence may be aggravated by being committed againsta royal proclamation. This doctrine would seem to hold evenin our own day : a judge in passing sentence might take intoconsideration the fact that the offence, riot, let us say, orunlawful assembly, had been publicly proclaimed an offenceby the king : but obviously a power of issuing such proclamationsis not of first-rate importance.With regard to the dispensing and suspending powers,I can refer you to Sir William Anson'. The two powers arein theory distinct. Our law might give to the king power todispense with statutes in favour of individuals specially namedby him, and yet might well deny him the power of suspendingLaw and Ctisto//t of the ConstituLimz, Part I, PnrZiam~lzt, 3rd ed., pp. 311-19.IV The Dis-ensing Power 303a law so that persons in general might treat it as being nonexistent.The claim to the greater power seems to have grownout of the claim to the lesser power, and the theory establishedat the Revolution by the Bill of Rights is that, while the suspendingpower had never had any legal existence, the king hadlawfully enjoyed a certain, or rather, perhaps we ought to say,an uncertain power of dispensation. It was extremely difficulteven for the most ardent parliamentarians to deny that adispensing power had existed, though as to the definition ofits lawful limits there was a very great uncertainty. Froma very early time the king had taken on himself to dispensewith statutes. In theory this power was closely connectedwith that power of pardoning, with which our king is stillentrusted. We may indeed readily distinguish between thetwo-pardon relates to something that has already been done,dispensation to something that is to be done in the future.Also to this day the queen, by her Attorney-General, haspower to stop a criminal prosecution by entering a nolieprosequi. Every proceeding by indictment is in legal theorya proceeding by the queen, and if the queen refuses toprosecute, then the prosecution comes to an end. It shouldbe remembered also that many of the medieval statutesimposed as punishments for offences not reaching the degreeof felony, fines and forfeitures of which the king had the profit.It should be remembered also that a distinction between the ,king's public capacity and his private capacity, a distinctionbetween the king and the crown is pretty modern and foreign tothe Middle Ages. The royal revenue and the national revenueare all one ; there is no such thing as national land, the king'slands are simply the king's lands, no matter by what title theybecame his. These things being remembered, it will not seemstrange that the king should have exercised a power ofdispensing with penal statutes. If any one breaks such astatute, who is wronged? The king; it is for him to prosecute,and the fines and penalties will be his. May we not say,Volendi non jit injuria ; if the king chooses to say in advancethat he will not consider himself wronged, that he will notexact those penalties which the statutes have given him,what harm is there in this? This power then of dispensing

Constitzctionad History The Declaratio~z of Iadztlgence 305with statutes, seems to have provoked but little protest beforethe seventeenth century. In that century no lawyer, so far asI am aware, doubted its existence, and the Bill of Rightsadmitted that in some instances the exercise of it had beenlawful. Certain lines had been drawn. It was, for example, avery general doctrine, that while the power extended to whatwere called mnla qz~iaprohibita, it did not extend to mala iltsel. The king might permit a man to do what would not havebeen unlawful but for the statute; he could not permit him todo what apart from any prohibition would be wicked ; mightdispense with such a statute as those which forbad the holdingof land in mortmain, but not with a statute which fixed a punishmentfor larceny or murder. Again we find in Coke thedoctrine that the king can always dispense with a statute whichtrenches on the royal prerogative, yes, even though the statuteitself declares that a dispensation shall be invalid. Cokemore than once repeats this doctrine, which obviously pointsto prerogative above statute. He says that in Henry VII'sday it was decided that the king might dispense with astatute, providing that the same person shall not be sherifffor more than a year, and which declared that a dispensationto the contrary should be invalid. The king, by his prerogative,was entitled to the service of his subjects as sheriffs andso forth; no statute could deprive him of this. The Year Bookto which Coke refers does not seem to me to bear him out;such, however, was his doctrine2. It is only under James I1that we hear much against dispensations, though the sale ofthem had long been a grievance. James seems to have usedthem with a settled purpose of practically annulling thestatutes which excluded Papists from office. In this the courtmaintained him, and doubtless his success with dispensationsset him on the project of suspending laws i11 a direct fashion.The line between the two powers that he claimed can betheoretically marked-the dispensation applies to this or thatindividual, a suspending of the statute would free all men, andyet, of course, the dispensing power might be so lavishly usedthat it would practically operate to suspend the laws. The1 Coke, Case of P~oclat7zations xrr, Report 76.ib. Case of Not2 Od~fanfe XII, Report 18.Bill of Rights condemned absolutely the suspending power ;its condemnation of the dispensing power was qualified. 'Thepretended power of dispensing with laws, or the execution oflaws by regal authority, as it hath been assumed and exercisedof late, is illegal.' It would have been going too far to declarethat every exercise of the dispensing power had been illegalmanyprivate rights and titles must have been acquired on thefaith of dispensations. No attempt, however, was made tosettle what dispensations had been legal : the words used werethose which I have just read. As to the future, it was declaredthat no dispensation by non obstmzte of any statute shall beallowed, ' except a dispensation be allowed of in such statute,and except in such cases as shall be specially provided for byone or more bill or bills, to be passed during this presentsession of parliament.' There was some intention, at leastamong the lords, of passing an act defining in what casesdispensations should be valid; but the project fell to theground-and so the words about a bill to be passed in the thensession of parliament, never took effect. This is the last ofthe dispensing power.As to the suspending power, the case of the seven bishopsis the one great case. The question came but incidentallybefore the court. James I1 had issued the declaration ofindulgence. By his royal prerogative (as the document runs)he declares it his royal will and pleasure that all and allmanner of penal laws in matters ecclesiastical be immediatelysuspended. The clergy were required to read this declarationin church ; the bishops petitioned, and their petition was the'seditious libel' for which they were tried. Now the oneprecedent which could be produced for such a declaration, wasa very similar declaration published by Charles I1 in 1673-a declaration of indulgence suspending the penal laws. Rutthe commons had protested, and Charles had been compelledto acknowledge that the declaration was illegal. Thisprecedent, therefore, so far from strengthening the case forthe crown, could but weaken the case for James when hefollowed his brother's footsteps. At the bishops' trial theadvocates make the best of their very bad case, but very badit certainly was. Two judges charged the jury in favour of

306 Co?zstitutionn Z History PERIODthe crown, two in favour of the bishops. The two formerseem to have had nothing to say for the declaration, save thatthe laws were the king's, and that he might do what he likedwith them ; the bishops, as we all know, were acquitted. Theonly ancient record that was produced was from the reign ofRichard 11, and, as it seems to me, shows very plainly thateven Richard did not believe himself to possess any such vastpower as James now claimed1. The commons, expressing greatconfidence in the king, declared that the king, with the assentof the lords, might make such sufferance touching the Statuteof Provisors lately passed, as should seem to him reasonableuntil the next parliament ; the commons, however, were to beat liberty to disagree to such sufferance in the next parliament,protested that this assent was a novelty, and was not to bedrawn into consequence, and prayed that this protest mightbe recorded on the roll of the parliament. But in truth onecan hardly speak of this declaration otherwise than as an openand determined attempt to override the law. The Bill ofRights dealt with the suspending power in a very summaryway. 'The pretended power of suspending of laws, or theexecution of laws by regal authority, without consent ofparliament, is illegal.' This also is reckoned one of the waysin which King James did endeavour to subvert and extirpatethe Protestant religion and the laws and liberties of thiskingdom : namely ' By assuming and exercising a power ofdispensing with and suspending laws, and the execution oflaws without the consent of parliament ; also by committingand prosecuting divers worthy prelates for humbly petitioningto be excused from concurring to the said assumed power.'F. Taxation and Control over Finance.At the beginning of our period the king has lately achieveda great victory in the financial sphere. The Court of Exchequerhas decided in Bate's case, or the case of the Impositions,that the king may set a duty on impor~s. Even Coke thinksthat he may do this, if it be not merely for the purpose ~fraising a revenue, but for the good of the realm; he mayprohibit importation, therefore a fortiori he may tax it.SIoZc TriaLs, xrr, 375. For the precedent, Rot. Purl. 15 Ric. 11. See alsoBroom, Constitutwnal Law, 2nd ed. pp. 406-506.IV The Petitio~z of R@t 307Parliament protested, and grew bolder the more it explored therecords of the Middle Ages. None the less, imposts were seton all goods, and were collected. When Charles I met hisfirst parliament, the commons refused to make that grant oftonnage and poundage for the king's life, which since the daysof Henry V had been usual ; they would grant it for but oneyear ; the lords would not pass a bill for so restricted a grant;the king dissolved the parliament, and continued to levytonnage and poundage and other imposts, without parliamentarysanction. Out of his second parliament he could getnothing; it was set upon impeaching Buckingham, and theking was set on saving him. Indirect taxation would notnow suffice to meet the king's wants. He had recourse toa forced loan-the very sums which divers persons were to'lend' him were specified. Five knights who refuse to contribute,Darnel, Corbet, Earl, Heveningham and Hampden, were committedto prison by the council. They applied for a habeascorpus, but could not get delivered; their case, famous asDarnel's case, will come before us under another heading.In March, 1628, Charles had to face his third parliament,and on 7 June he gave his assent to the Petition of Right whichturned it into a statute. The first of its four points concerns ushere. It recites the Statutzmz de Tallagio non Concedendo,the statute of 1350 against forced loans, and the statute ofRichard I11 against benevolences; it then recites that commissionshave issued, by means whereof people have been requiredto lend money-and have been imprisoned for not doing so. Itprays that no man hereafter be compelled to make or yieldany gift, loan, benevolence, tax, or such like charge, withoutcommon consent by act of parliament. This request the kingconcedes.As against anything that we could call direct taxation,these words are clear enough. That they were meant to strikeat the customs duties, usually known as the impositions, whichthe king was levying without parliamentary consent, is by nomeans clearl. We have to remember that the Court ofExchequer had pronounced them to be lawful. As a matterof fact the king continued to levy them-some, Chambers forGardiner, History of England, vol. VI, pp. 326-9. G. W. Prothero inEng. &id. Rev. vol. vr, p. 394-5 (April, 1891).

308 Constitutional Histo~y PERIODinstance, refused to pay and were imprisoned. But during thelong interval which now passed without a parliament (1629-40),theking had recourse tdyet a new means of extorting money.In 1634 he required the seaports and maritime counties tofurnish him with ships. Shortly after he demanded shipmoney-moneyby way of composition for an equipment ofships-even from the inland counties. Hampden refused topay. His case was heard by all the twelve judges in theExchequer-Chamber1; seven decided against him, five were inhis favour; but two of these took a merely technical point;only two, Cooke and Hutton, spoke decidedly against the king.Now that there were some ancient precedents which might beforced to support his case, could hardly be denied ; but to saynothing of the Confimalio Cartarum, and the De Tallagio,which parliament had lately treated as a statute, there was therecent Petition of Right. Whatever might be said of thecustoms duties, clearly this ship-money was a tax. Themajority of the judges-would not contest the applicability ofthese statutes-they fell back on prerogative above statute.I have already quoted some passages from their judgmentspracticallythey say that the king is sovereign, and hiscommands are laws. The Long Parliament passed an actdeclaring the judgment void ; the king gave his assent on7 August, 1641. It declared that the writs for collecting shipmoneywere unlawful, and it condemned the practice ofobtaining an extra-judicial opinion from the judges, a practicewhich had been resorted to in Hampden's case. Meanwhilethe parliament had at last made grants of tonnage andpoundage, and the king had, in giving his assent, declared thathe was abandoning a right which his predecessors had everconsidered their own. The act declared that it could notlawfully be levied without parliamentary grant. At the sametime measures were passed to abolish the practice of forcingmen to accept knighthood, or pay a fine-a practice of hisThere were two Courts of Exchequer Chamber, one created by 31 Ed. 111,st. I, c. 12 to hear appeals from the Court of Exchequer, the other, created by27 Eliz. c. 8 to hear appeals from the Court of King's Bench. The Courts werepractically amalgamated in 1830 by 11 Geo. IV, I Will. IV, c. 70, 1 8. TheJurisdict~on of the Exchequer Chamber was finally transferred to the Court ofAppeal in 1873. 36, 37 Vict. c. 66, 1 18. See W. S. Holdsworth, Hislory ofEnglish Law, vol. r, pp. 108-10, 413.I v Aflrojriat ion of Su##Zies 309ancestors which Charles had revived-and which parliamentmight well call useless and unreasonable, but could hardlycall unlawful, and also to prevent the resuscitation of ancientforest rights, which had of late been oppressively used.On the whole then, the victory in this matter of taxationwas won, so far as such a victory can be won by acts ofparliament, before the Civil War broke out. Charles I1 had noneed to raise revenue without the consent of parliament: hewas liberally supplied. But the duties which had been grantedto him died with him, and James continued to levy them withoutparliamentary authority during the interval between hisaccession and the meeting of his parliament. That intervalwas but two months, however, and his parliament was readyto condone what he had done. However, when the Revolutioncame, this was reckoned up as one of his illegal acts in theDeclaration of Rights and the Bill of Rights-he had leviedmoney by pretence of prerogative for other time and in othermanner, than the same was granted by parliament; and itwas declared that 'the levying of money for or to the use ofthe crown by pretence of prerogative without grant fromparliament for longer time or in other manner than the sameis or shall be granted, is illegal.' This we may say is the lastword on this matter-one great chapter of English history hasbeen closed.But controversy has been collecting round another point.Parliament has been claiming a control over the expenditureof the revenue. We have to remember that throughout theMiddle Ages the king's revenue had been in a very true sensethe king's revenue, and parliament had but seldom attemptedto give him orders as to what he should do with it. However,sometimes, in particular under Henry IV, it had forced him torender accounts. Under the Tudors, parliament hardly daredto meddle with such matters ; but in 1624 a precedent was setfor an appropriation of supplies-the money granted byparliament was to be paid into the hands of commissionersnamed by the parliament, and was to be applied to the reliefof the Palatinate. A similar course was followed in 1641-but this might perhaps be accounted a revolutionary proceeding.During the rebellion men became accustomed to see the

Co~zstitz.ttio~za Z Historynational finances managed by a parliamentary committee. In1665 a very large sum was to be granted for the Dutch war ;a clause was introduced into the bill which imposed the taxto the effect that the money was to be applied only to thepurposes of the war. This ~recedent was followed in some, butnot all, other cases under Charles 11-it was not followedby the parliament of James 11. After the Revolutionit was invariably followed-money raised by taxation wasappropriated to this purpose and to that, and a clause wasinserted in the statute forbidding the Lords of the Treasury touse money for any other purpose than that for which it wasappropriated. Before the end of William's reign, a certainannual sum is assigned to the king for his own use ; we beginto have what is afterwards called a civil list; the residue ofthe money is voted for this purpose and for that-so much forthe navy, so much for the army. Already under Charles I1it had become apparent that such appropriation was to be noidle scheme ; the breach of an appropriation clause was one ofthe charges on which Danby was impeached. He was savedfrom punishment by a royal pardon-a matter which willcome before us by and by. We shall also see how the appropriationof supplies secured as a matter of fact that parliamentshould meet every year.Meanwhile, the commons had asserbed, not merely thatmoney bills must be first introduced in their house, but alsothat the lords cannot make amendments in them. This claim,it seems, cannot be traced beyond the Restoration, but we hearof it in 1661 and 1671. The lords gradually and reluctantlygave way about this matter-but a border warfare was longkept up between the two houses as to details. It is difficultto find any principle upon which this so-called privilege ofthe House of Commons can be founded. Before the end ofWilliam's reign the commons saw that this put a powerfulengine into their hands for coercing the House of Lords. In1701, in order to force the lords into passing a bill whichannulled the grants which William had made out of theforfeited Irish lands, they tacked to this a money bill, a billgranting the Land Tax ; they sent up, that is to say, a singlebill dealing with these two matters, and insisted that as it wasTaxation of the Clergya money bill, the lords could not atnend it, could merelyaccept or reject it as a whole. The lords, thus forced intoa dilemma, had to pass the bill, for they could not leavethe king without money1. Thus the House of Commonsbecame in practical power the superior of the two houses.One curious little point remains to be noticed, namely, thetaxation of the clergy. Ever since Henry VIII's day theclerical subsidies, though voted in the convocations, were confirmedby act of parliament. During the commonwealth theclergy were taxed along with the laity. After the Restorationthe old plan was for a moment adopted-the convocations of1661 taxed themselves ; but in 1662 they were taxed byparliament. This theoretically great change was the outcomeof no legislation, there was no fuss about it, merely a privatearrangement between Lord Chancellor Clarendon and ArchbishopSheldon. From that moment, we may say, the clericalestate disappears finally. Convocations, however, still met, butin 1717 the Bangorian controversy, originated by the writingsof Hoadley, Bishop of Bangor, was in flame ; it was apparentthat the clergy would censure Hoadley, a friend of the government.The convocations were prorogued by royal writ, andwere never summoned again for business until 1861.The greatest event that we have to notice under thisheading is the abolition of the Star Chamber-accomplishedby an act of the Long Parliament, to which the king gaveassent on 5 July, 164r2. More and more the theory hadgrown, that it derived its only authority from the act ofHenry VII, that all that it did beyond the authority of thatstatute was illegal. This theory was adopted by the act whichabolished the court. It abolished the court commonly calledthe Star Chamber-it also forbad the council to meddle withcivil causes-it abolished the jurisdiction of the Council of theMarches, and the Council of the North; it declared that nocourt should exercise the same or the like jurisdiction as hadbeen exercised by the Star Chamber. On the same day, byMacaulay, History of England, c. XXV.Gardiner, Constifufional lloruntents, pp. I 79-86.

312 Constitutional Histovy PERIODanother act, the Court of High Commission was abolished,and it was declared that no similar court should be erectedfor the future. This act used very large words as to theabolition of all ecclesiastical jurisdiction. During the commonwealthepiscopacy disappeared. In 1661, after theRestoration, an act was passed, explaining that the old ecclesiasticalcourts were to retain their old powers-the act of1641 was abolished save as far as related to the Court of HighCommission. Loyal as was the parliament of 1661, it did notmean to have either the Star Chamber or the High Commissionback again. However, in 1686 James 11, in the teeth of thesestatutes, entrusted the whole government of the church toseven commissioners with large powers of suspending, deprivingand excommunicating the clergy. His hardly disguisedobject was to force the Rotnan religion on the national church.It is one of the offences reckoned up against him in theDeclaration and the Hill of Rights that he has issued andcaused to be executed a commission under the great seal forerecting a court of commissioners for ecclesiastical causes :this is 'illegal and pernicious.'The Chancery, though it had never been popular, and hadat times been regarded as unconstitutional, escaped. Barebones'Parliament attempted to abolish it, but evenCromwell found that the Chancery lawyers were too much forhim1. After the Restoration a new period opens in its history.Heneage Finch, Lord Nottingham, who became Chancellor in1675, has been called the father of English Equity. Henceforthequity becomes a settled system of rapidly developingprinciples, a supplementary system of case law, givingadditional remedies and enforcing additional duties-but asystem of case law with precedents reported and respected.Next we notice that the independence of the judges hasbeen secured. Throughout the Stuart reigns judges havebeen dismissed if they withstand the king-too often theyhave been his servile creatures. All along they have heldtheir offices dura~zte benepZacito-during the king's goodpleasure. At once after the Revolution the question is raised,For the attempts to reform the Law during the Commonwealth seeI?. A. Illderwick, The Ztttwregrtunz, pp. 152-248.IVI~zde#e~zdence of the Judges 313and William's judges were commissioned qunmdiu se benegesse?,i?~t-during good behaviour. He, however, refused hisassent to a bill for making this a matter of law-but thepoint was secured by the Act of Settlement (12 and 131 1 111, c. 2). SO soon as the House of Hanover comes tothe throne judge's commissions are to be made qun~ndiu sebenegesssri?zt, and their salaries are to be fixed, but they areto be removable upon an address of both houses of parliament.This means that a judge cannot be dismissed excepteither in consequence of a conviction for some offence, or onthe address of both houses.Another important matter has been the power of committingto prison and the use of the writ of habeas corpus.The first question is, whether the king or king in councilhaving committed a man to prison, it is a sufficient return tothe writ that he was committed by the king's command. Wehave seen that the judges of Elizabeth's day had returneda very obscure, perhaps designedly obscure, answer1. Thepoint was raised by Charles I in the interval between hissecond and his third parliament : five knights, Darnel, Corbet,Earl, Heveningham, and Hampden were committed to gaol forrefusing to contribute to the so-called ' loan ' that was beingexacted. They obtained the habeas corpus, and the gaolerreturned that they were imprisoned per speciale mandntu~ndomini Regis signified to him by a warrant of the council.Darnel's counsel hardly contended that he should be set free-but did contend that he ought to be liberated on bail-andproduced a great mass of precedents to show that the courtshad repeatedly bailed prisoners about whom similar returnshad been made. The judges refused to bail the prisoners, andsent them back to gaol. In doing this they had, I think, theweight of precedents, even of modern precedents, againstthem ; but practice had hardly been uniform, and we are not, Ithink, entitled to say that the judgment was plainly iniquitous.This was the second point dealt with by the Petition of Right.It recited the famous clause in Magna Carta Nz~lZus Ziberkonzo etc. ; it recited what had happened in Darnel's case,and it prayed 'that no freeman in any such manner as isP 274-

314 Cotzstitzttional History PERIODbefore mentioned be imprisoned or detained'; and to thisprayer the king gave his assent. On 2 March, 1629, therewas a disorderly scene in the House of Commons. TheSpeaker had the king's commands to adjourn the house.Eliot wished to read a remonstrance against the taking oftonnage and poundage without parliamentary sanction. TheSpeaker was held down in his chair. On 10 March theking dissolved parliament. A few days after he arrestedsome of those who had been engaged in the disorder, Eliot,Holles, Selden, Long and Strode. They sued out a writ ofhabeas corpus. On this occasion the return mentioned acause for the arrest-they were arrested for notable contemptsand for stirring up sedition. This was not a charge of felonyor treason, and the judges seem to have had no real doubtthat they ought to be bailed. However, they temporized andordered the prisoners not merely to find bail for the presentcharge, but also to find sureties for future good behaviour.The prisoners refused to do this. The king afterwardsliberated all but three. Against Eliot an information wasfiled in the King's Bench for words uttered in the House:against Holles and Valentine, for tumult and an assault onthe Speaker. The further history of this case must comeunder the heading of parliamentary privilege.The act of 1641 which abolished the Star Chamber didnot deprive the council of the power of committing to prison ;it deprived it of criminal jurisdiction, of power to hear anddetermine causes, but the power of committing to prisonsuspected persons in order that they might stand their trialsin the ordinary courts was left to it, it was a power possessedby every justice of the peace. The act, however, provided thatevery person so committed should be entitled to a habeascorpus, and made some stringent regulations for forcing thecourt to decide at once whether they were bailable or no.Thus at the Restoration, we may say, the general principlesof the law were settled and needed no amendment; butevents showed that they could be evaded. Between 1670and 1679 the House of Commons attempted to get a new actdealing with this matter. In the latter year the famousHabeas Corpus ac! was passed (31 Car. 11, c. 2). I know noIV Nabens Corjzcs Act 315subject on which it is more difficult to lecture briefly, becauseit is altogether made up of details, but roughly speaking theresult is this-any person who stands committed for anycrime except for treason or felony plainly expressed in thewarrant of commitment, is to have the writ. He is to be able toget it in vacation time as well as term time. The chancellor orany judge to whom he applies must grant it, or incur a penaltyof £500. The gaoler must make the return within a verybrief time, or incur a penalty. No person is to be sent intoprison out of the kingdom ; anyone who breaks this rule is toincur the penalty of a praemunire and be incapable of pardon.Prisoners who are committed for treason or felony are to havea right to a speedy trial. The heavy penalties which judgesand gaolers incur if they break this act are given to theinjured person, may be sued for by him as debts ; this schememakes it impossible for the king to protect or pardon them,for the king has no power to forgive a debt due to hissubjects. For further details I must refer you to Langmeador Hallam, or still better to the act itself1.One of the offences alleged against James I1 in theDeclaration of Rights and Bill of Rights is that excessive bailhas been required of persons committed in criminal cases toelude the benefit of the laws made for the liberty of thesubjects: and it is declared that excessive bail ought not tobe required. This is somewhat vague, but there was no moredistinct provision. The law as to what offences were bailable,what not, was still in the main contained in the Statute ofWestminster 1 (1275). As a general rule a person committedfor a misdemeanour was entitled to bail ; but in the courseof the seventeenth'and eighteenth centuries a number ofexceptions were made to this.To this period also we must assign the establishment ofthe principle that jurors cannot be fined or imprisoned orotherwise punished for a false verdict, or for a verdict againstthe judge's direction. The old process of attaint still existed:nominally it existed until 1825, when it was abolished ; but ithad fallen into disuse, and judges pjesiding at trials had taken1 Printed in Stubbs' Select Charters, pp. 517-23.

Constif zdtio?znl Historyon themselves to fine and imprison jurors in a summary wayfor perverse verdicts. Apparently this practice began in thesixteenth century. In 1670 the Court of Common Pleas inBushell's case decided that it was illegal, and set free jurorswho had been imprisoned by justices of oyer and terminer atthe Old Bailey. The abolition of the Star Chamber was, wemust remember, the abolition of a court which habituallypunished jurors for perverse verdicts. We may say that atthe end of our period the principle is fully established that fora perverse verdict or a verdict against the judge's directionjurors cannot be punished -though the old process of attaintingthem before a jury of twenty-four (which seems never to havebeen applied in criminal cases) still maintained a nominalexistence. A corrupt verdict would of course be a differentmatter-for this jurors might be indicted and tried in theregular way.Meanwhile some other points of our judicial constitutionwere settled. The House of Lords had succeeded in establishingits right to hear appeals from the Court of Chanceryand had failed in establishing a right to act as a court of firstinstance in civil matters. We have seen how the function ofthe House of Lords as a court of error had fallen intoabeyance towards the end of the Middle Ages, and beenrevived under James I. During the reign of Charles I itpressed its claims further with little protest from the commons;it entertained appeals from the Chancery, and it exercised ajurisdiction as a court of first instance both in civil cases andin criminal cases which had nothing to do with privilege.When at the Restoration the time came for reestablishing theancient constitution, this part of the constitution was in asomewhat undefined state and gave rise to some bitter quarrelsbetween the two Houses ofthe parliament of 1661-Charles 11'slong parliament. The result I have described. In the case ofSkin~zer v. The East India Compaay the lords attempted to actas a civil court of first instance. Both houses had gone greatlengths, and when in 1670 the king intervened and persuadedthe houses to rescind all their proceedings, the fruits of victoryin this case were obtained by the commons-the lords tacitlyabandoned their claim to an original civil jurisdiction. InJz~dicial Power ofthe Lords1675 they fell out again over the case of Shi~Zey v. Fagg, acase in which the House of Lords had taken on itself to hearan appeal from the Chancery. In this case after long disputesthe commons tacitly gave way, and the lords established theirpoint. The truth seems to be that the commons were gettingfrightened by their own arguments. The historical investigationsinto which they plunged might show them that theclaim of the House of Lords to an inherent power of hearingappeals from the Chancery was a new claim, but such investigationscould only bring out into clearer relief the ancientdoctrine that the only source of all jurisdiction is the king.They did not want to exalt the king's power, and they gaveway without however conceding that they were in the wrong.Thus it came about that the House of Lords acquired a newdomain for its judicial powers-it now sat as an appeal courtfrom the Chancery; as the depository of the judicial power ofparliament it was a court for correcting the errors in law ofthe courts of comnlon law, it was a court for the trial of peersindicted for treason or felony, and lastly it was the tribunalfor impeachments.This is the era of impeachments. Do not think ofimpeachments as common events. During the whole ofEnglish.history there have not, I think, been seventy, and a fullquarter of all of them belong to the years 1640-1-2. Almostevery case therefore has raised some new point. Perhaps themost important points are these-(I) can a commoner beimpeached for felony or treason ? The lords in Fitzharris'scase (1681) decided that he could not-he was entitled to trialby jury in every capital case. The commons voted that thiswas a violation of the constitution of parliament. Fitzharriswas indicted for treason in the ordinary way before the King'sBench and hanged. In 1689 however the House of Lords inthe case of Sir Adam Blair and other commoners impeachedfor treason decided to proceed with the impeachment. Certainlyin the reign of Charles I they had not objected to tryingimpeached commoners for treason. The question has notbeen raised since 1689, though it has often been discussed. Ibelieve that the weight of legal authority is against theimpeachment of commoners for treason or felony. Sir J. F.

Constitutio~znd HistoryStephen lays down that a commoner cannot be impeachedfor treason or felony, but that there may be some doubt as totreason1. (2) It was at length decided in the case of WarrenHastings that neither a prorogation, nor a dissolution ofparliament, will bring an impeachment to an end. Aboutthis the House of Lords in Charles 11's reign had come tocontradictory resolutions ; in Danby's case (1679) it had heldthat a dissolution did not put a stop to an impeachment; in1685 it reversed and annulled this resolution. Too often suchmatters have been decided by party votes. (3) Danby's caseraised the important question, whether a royal pardon couldstop an impeachment; the question was raised but not decided,for the impeachment was dropped. The Act of Settlementprovides that a pardon shall not be pleadable to an impeachment,but does not prevent the king from pardoningafter sentence-and three of the lords concerned in therebellion of 1715 were pardoned after they had been impeached,found guilty and sentenced. As to the point raisedin Danby's case, whether as the law stood a pardon would stopan impeachment, it was a very new point, and on generalprinciples I am far from being satisfied that the commons hadthe best of the argument. The question would seem to bewhether an impeachment was more analogous to an indictment,which could always be stopped by the king's pardon,or to an appeal of felony which, being regarded as a privatesuit, was beyond the royal power.Another change to be noted is this. We remember thatif a peer is indicted for treason or felony he is tried ifparliament be in session by his peers in the House of Lords,but if parliament be not sitting, then by the Court of theLord High Steward. The king, since the steward's office hadceased to be hereditary, made some peer High Steward forthe occasion, who summoned a number of peers, not fixed bylaw, to hold the trial! This of course enabled the king or hissteward to pack the court. An act of 1696 altered this in caseof treason, but not in case of felony, by ordering that all peersHistory of Criminal Law, vol. r, p. 146.See above, p. 171.sllould be summoned twenty days before the trial. I believe,however, that in no case has this provision taken effect ; thelast trial in the Court of the High Steward is said to be thatof Lord Delamere for treason in 1686. Parliament has sat soregularly year by year that there has been no need for such acourt, and since the end of George 11's reign there have, Ibelieve, been but four cases of the trial of peers in parliamentotherwise than on impeachment. These are Lord Ferrers formurder in 1760, Lord Byron for murder in 1765, the Duchessof Kingston for bigamy in 1776, and Lord Cardigan formurder in 1841 l.This same act of 1696 introduced various importantmodifications into the procedure in cases of treason. Theindicted person was to have a copy of the indictment, mightmake his defence by counsel, and produce witnesses who wereto be examined on oath. He was only to be convicted if therewere two witnesses to the same treason, he was only to beprosecuted within three years after the alleged treason. Hewas to have a copy of the panel, that is, of the names of thepersons summoned as jurors, two days before the trial, in orderthat he might consider whom to challenge. In all theserespects a number of exceptions in favour of persons accusedof treason were made from the general law. It was not until1702 that an accused felon could produce witnesses who couldbe examined on oath, and it was not until 1836 (6 and 7Will. IV, 114) that he was suffered to make his defence bycounsel.The evil practice of passing acts of attainder has not yetfallen into disuse. It was by an act of attainder that Stsaffordperished in 1641. It was by an ordinance of the two Houses,to which the king's assent had of course not been obtained,that Laud perished in 1645. In 1660 the turn for theregicides came ; such of them as were already dead or beyondthe seas were attainted of high treason by act of parliament.In 1696 Sir John Fenwick was attainted for the attempt toassassinate William 111. This is the last instance of an actl Lord Russell was tried for bigamy in rgor. Lord Halsbury (Lord Chancellor)presided as Lord High Steward. There were also present about 160 Peers, includingall the Law Lords who generally hear appeals, and eleven Judges.

320 Co~zstitutional History PERIODpassed to inflict the punishment of death for an offencealready committed ; but minor punishments have been inflictedby similar means in later days.One more remark. The act which abolished the StarChamber did not of course abolish the council. It was stillafter the Restoration the body consulted by the king when hewanted advice, though already the practice is springing up ofconsulting only a few of its members, a practice which incourse of time has given us the modern cabinet. But the actjust mentioned did not deprive the council even of all judicialpower. It was forbidden to take cognizance of any matter ofproperty belonging to the subjects of this kingdom ; but itretained jurisdiction as a court of last resort in admiraltymatters, and in all matters civil and criminal arising in theking's lands beyond the seas. From very small beginnings, ajurisdiction over the Isle of Man and the Channel Islands, thispower steadily grew as conquest and colonization gave theking new lands beyond the seas. Thus the Privy Councilbecame an ultimate tribunal for a vast empire-not forEngland, not for Great Britain, but for all other lands of theking in all corners of the globe-a marvellous jurisdiction nowexercised by the judicial committee of the Privy Council.H. Privilege of Parliarneat.Over the privileges of parliament there has been severefighting. In the first place as regards freedom of speech wehave Eliot's case. A few days after the dissolution of 1629Eliot and others were arrested and committed to the Tower.They obtained writs of habeas corpus, and the returns to thosewrits stated that they had been committed for notablecontempts and for stirring up sedition. The judges had toconsider whether they should be bailed or no, and seeminglythere was no real doubt that by law bail ought to be allowed-but they temporized and demanded from the prisoners notmerely bail for the present charge, but also sureties for futuregood behaviour. The attorney-general then brought forwarda criminal charge against three of them, against Eliot forwords spoken in the House, against Holles and Valentine forIV Freedom of Speech 321a tumult on the last day of the session. The others wereliberated. The prisoners pleaded that as the alleged offenceswere supposed to be committed in parliament they ought notto answer for them in another court. They relied much onStrode's case and the act of 1512 (4 Hen. VIII, c. 8)) passedrespecting him ; this they contended was a general act. Thejudges held that it only applied to suits against members ofparliament prosecuted in the Stannary courts, and arguingthat the King's Bench has power to punish crimes wherevercommitted, sentenced the prisoners, who refused to plead anyother plea, to be imprisoned during the king's pleasure.When the Long Parliament met the commons protestedagainst this as a breach of privilege. After the Restoration,the parliament, however loyal, was not disposed to retract itsclaim of privilege. In 1667 both Houses agreed in declaringthat Strode's act was a general act declaratory of the ancientand necessary rights and privileges of parliament and thatthe judgment against Eliot, Holles and Valentine was illegal.What is more, Holles, who was still alive, caused the judgmentto be brought before the House of Lords by writ of error,and the House in its judicial capacity reversed the judgment.We must not however suppose that the reversal of thisjudgment established the principle that nothing done inparliament by any of its members can be punished as a crimein a court of law. It was conceded that had the charge beenmerely that of committing a riot in the House, the King's Benchmight have taken cognizance of the case ; but words spokenin parliament it could not punish. We may take it to be lawthat an ordinary crime, such as theft committed by a memberin the House, might be punished in the ordinary courts in theordinary way. Since the Restoration there has not, I believe,been any attempt made by any court of law to punish amember for words spoken in the House. The Declaration 'and Bill of Rights proclaim that the freedom of speech anddebates or proceedings in parliament ought not to be impeachedor questioned in any court or place out of parliament.The attempt to arrest the five members must also benoticed. Charles had determined to accuse five members ofthe House of Commons of high treason. This he did, not by

Constitutiorznl Historycausing them to be indicted in the ordinary way, but bypreferring a set of charges against them in the House ofLords. For such a proceeding there seems to have been nowarrant, at least in later times. Only by an impeachmentpreferred by the commons could a commoner be brought totrial before the lords for any crime, and, as we have seen, itmight be doubted whether a commoner could even be impeachedfor treason or felony-thus he would be deprived oftrial by jury. Then the king in person attempted to arrestthe five members in the House of Commons, while the Housewas sitting. Now a member of parliament has no privilegeof freedom from arrest on a charge of treason or felonyindeed,according to later authorities, he has none on a charge ofany indictable offence. You should therefore understand thatoutside the House Pym and his fellows might have beenarrcsted; perhaps they might lawfully have been arrestedwithin the walls of the House, if the House had not beensitting. But the attempt to arrest them while they weresitting as members of the House, we may probably reckon asa distinct breach of the law ; at any rate it was an extremelyhigh-handed act, intended to overawe the House : it made theCivil War almost certain.After the Restoration members of Parliament enjoyed theprivilege of freedom from arrest in all civil cases. We mustremember that imprisonment in civil cases was at this timevery common; debtors were imprisoned by way of execution,and when an action was begun against a man he might verycommonly be at once arrested and compelled to find bail forhis appearance in court, or otherwise remain in prison-so thisprivilege was a very important matter. It was carried to greatlengths-the members claimed freedom from arrest not onlyfor themselves but for their servants, and they claimed thattheir property should be privileged from execution. Theseextensive claims which were admitted in the seventeenthcentury were gradually curtailed by statute ; they had becomeserious obstructions to the ordinary course of justice. Astatute of 1700 began this process of curtailment; statutes ofAnne and George I11 (1770) carried the process further12 and 3 Anne, c. 18. ro George 111, c. 50.IVP~nishmeat for Contemjt 323The servants and the property of members were no longerprivileged-nothing was left but the freedom from arrest formembers themselves, a matter which the abolition of imprisonmentfor debt has in our own day made of small importance.As to the power of punishing persons for contempt, thetwo Houses vied with each other in extending its limits. Itwas freely exercised to protect the members of the Housesfrom assault and insult-under William I11 he who makesany insulting remark about any member of the House runs agreat chance of incurring its displeasure and being imprisonedby its order. But further it becomes dangerous even totrespass on a member's land or to fish in his waters. Duringthe latter half of the eighteenth century the Houses graduallyabandoned their claim to avenge all manner of wrongs doneto their members-but of this abandonment hereafter; duringWilliam's reign the claim of privilege was at its height.A more justifiable use of the power of the House consistedin the punishment of attacks directed not against individualmembers but against the House as a body. But even in thissphere the power was intemperately used. A notoriousinstance has just occurred. In 1701 the majority in theCommons' House has been slow to grant supply. The grandjury of Kent present a respectfully worded petition beggingthem to grant the king the money urgently needed for theprosecution of the war. The House voted that this petitionwas scandalous and an attempt to destroy the constitution ofparliament, and it committed some of the petitioners toprison. It does not seem that they appealed for protectionto the courts of law; parliament was soon prorogued andthey were delivered. By this time it had apparently becomesettled doctrine that the House of Commons could notimprison a person save during the session, so that a prorogationwould set its prisoners free. They have not since the Revolutionattempted to keep a man in prison beyond the limitsof the session. On the other hand, the House of Lords hasimposed fines and committed persons to prison for a term ofmonths or of years.Whether a person imprisoned for contempt could get anyaid from a court of law, could get a court of law to entertain

Constitutionn Z Histovythe question whether a contempt had been committed was,we may say, at this time somewhat doubtful. Suppose theprisoner obtained a writ of habeas corpus and the gaolerreturned that he was imprisoned by order of one of the twoHouses for a contempt, would the judges be at liberty toinvestigate the question whether the alleged acts amountedto a contempt? In 1677 the House of Lords committedLord Shaftesbury and three other peers for words spokenduring a debate. Shaftesbury applied for a writ of habeascorpus, but the judges held that they could not inquire into acommitment by the lords of one of their body. In 1680 thecommons treated certain persons known as 'abhorrers' in avery arbitrary fashion. They brought actions against theserjeant-at-arms who had imprisoned them-he pleaded thecommand of the House ; but the judges on this occasion overruledthe plea. After the Revolution the commons took thismatter up and summoned two of the judges to the bar. Oneof them, Pemberton, made some show of argument, butafterwards gave way and admitted that the command of theHouse would justify the officer in making the arrest.Thus stands the question at William's death. Soon afterwards(Patey's case, 170.5) the judges came to the opinionthat they could not investigate the legality of a commitmentfor contempt. If the House committed a man for contemptand said no more, the courts could do nothing for him. Thuseach of the Houses gained a power of arbitrary imprisonmentwhich had been denied to the Court of Star Chamber. Thejudges of the last century seem to me to have been almost assubservient to the Houses as their predecessors of the Stuarttimes were to the king. And so the matter rests at thepresent day: if either House commits a man, whether he be amember or no, for contempt, there is no tribunal in which hecan raise by writ of habeas corpus the question whether acontempt has really been committed.Turning now to military affairs we have to recall the factthat before the days of Charles I proclamations of martiallaw had not been utterly unknown. Not to go back to theConz~nissions ofMartia Z LawWars of the Roses, Elizabeth had issued such a proclamationin 1588 and again in 1595. James had followed the examplein 1617, 1620, 1624. Probably we ought to say of them thatthey were illegal, though in this matter we may be prejudicedby what then was future history. Charles I early in his reignhad recourse to such commissions. It became always clearerthat there must be a standing army and that a standing armycould only be kept together by more stringent rules andmore summary procedure than those of the ordinary law andthe ordinary courts. Another grievance was the billeting ofsoldiers. In 1628 the king had to assent to the Petition ofRight. After dealing with the forced loan and the imprisonmentsby the king's command, it recited that 'of late greatcompanies of soldiers and mariners have been dispersed intodivers counties of the realm and the inhabitants against theirwills have been compelled to receive them into their houses. ..against the laws and customs of this realm.' Then it recalledthe words of Magna Carta, Nullus liber homo, and recitedthe commissions of martial law ; these it declared to bewholly and directly contrary to the laws and statutes of therealm. It prayed that the king would be pleased to removethe said soldiers and mariners, ' and that your people be notso burdened in time to come, that the commissions of martiallaw might be revoked and annulled and that no such commissionsmight be issued for the future.' This of coursesettled the law, and no expedient for evading it could bediscovered. The judges had to inform the king's generalsthat soldiers who offended must be tried by the ordinarycourts ; that only when an army of the king was in presenceof the enemy could there be any place for martial law. Cokein one of his latest books lays down that to put a man todeath by martial law is murder1.Meanwhile the king and parliament began to quarrelabout another and a still more vital point. In whom was thecommand of the military forces of the kingdom vested? Ithink that historians and lawyers must agree that it was in3 Inst. 5%. Reference may be made to Dicey, Lazu of the Constitutiotz,6th ed. c. VIII, and App. XII ; also to The Charge ofthe Lo?-d Chiefjustice to theGrandJury itt the case of the Queetz v. Nelson atzd Brand, ed. F. Cockburn, 1867.

326 Cogstitationad History PERIODthe king. It would have been necessary to go back to veryremote and revolutionary times for a precedent of an attemptby parliament to wrest this power from the king's hands.However Charles was suspected, and perhaps justly suspected,of desiring to use the army for the overthrow of the parliamentaryconstitution ; and in 1642 the Houses asserted thatthe power of the militia (as it was called) was or at all eventsought to be in their hands. This, as is well known, was oneof the immediate causes of the Civil War; the king wasrequired to consent to a bill putting the militia, as the oldcounty forces were now called, beyond his control. That themilitia and all fortified places should be in such hands asparliament should appoint was one of the Nineteen Propositionstendered to him at York in June, 1642. During thewar which followed both sides had recourse to rnartial lawfor the government of their armies'.I need not remind you how after this England cameunder the domination of the army, parliament itself becomingthe despised slave of the force that it had created. At theRestoration the very name of a standing army had becomehateful to the classes which were to be the ruling classes.In 1661 a statute (13 Car. 11, c. 6) declared that the 'solesupreme government of the militia and of all forces by seaand land is, and by the laws of England ever was, theundoubted right of the king and his predecessors, and thatneither house of parliament could pretend to the same.' Theold county force was remodelled by this act. But loyal asthe parliament might be, it would not trust even a king withsuch an engine of tyranny as a standing army. The ConventionParliament passed an act disbanding the army; theking assented ; he also had some reason to dread a standingarmy. The act of disbandment, however, sanctioned the continuanceof ' the Guards and Garrisons.' The garrisons wereto be placed in the condition in which they existed in 1637,and out of the residue of the soldiers the king was to be atliberty to retain a guard. The number of this guard was notspecified. Throughout the reign and on to the Revolution nomore than this was legalized. Controversy constantly brokeGardiner, Constitutional Docuttzents, pp. 245--61.Jealousy of n Stagding Aymy 327out between king and parliament as to military matters. Itwas extremely difficult to prevent the king's guards living atfree quarters, though the billeting of them was undoubtedlyillegal. This practice had been declared illegal by the Petitionof Right, and the old prerogatives of purveyance andpreemption with which it was nearly connected had beenabolished along with the military tenures. The king couldimpress no cart for military transport, he could buy no hay,straw, victual, or other thing save by free bargain. Anyonewho attempted to exercise these old prerogatives was liableto an action for treble damages at the suit of the partygrieved ; anyone who attempted to stop such an action wasliable to the punishments denounced by the statute of praemunire.Also it was difficult for the king to keep his soldiersin hand. In time of peace no punishment, at least no punishmentextending to life or member, could be inflicted on themexcept in the ordinary course of the common law. On theother hand it was practically very difficult to prevent theofficers from proceeding according to what they conceived to bethe justice of martial law. However, in 1666, articles of warwere issued providing for the trial of even capital offences bycourt martial ; also forbidding that any civil magistrate shouldimprison a soldier save for treason, or for killing or robbing aperson not being an officer or soldier. Seemingly the officerswho sat on such courts martial must have risked their necks.Soon after this Clarendon was impeached, 'for that he:lath designed a standing army to be raised and to govern thekingdom thereby; and advised the king to dissolve parliamentand to lay aside all thoughts of parliament for thefuture, to govern by a military power and to maintain thesame at free quarters and contributions.' But to keep astanding army of any considerable size without supplies fromparliament was impossible, and parliament was beginning toappropriate its supplies and to impeach those who infringedthe clauses of appropriation. Already, in 1666, a subsidywas granted ; £30,000 and no more was appropriated to thepay of the guards, the residue was to be spent in the war.In 1667 Charles declared that he was going to war withFrance; parliament granted but appropriated ; war was not

Constitutional Histoy31made ; parliament passed an act for disbanding the army, anact which contains an important clause directed against thepractice of billeting-important because it shows that thePetition of Right was not observed. Money was appropriatedfor the disbanding of the army. Seymour was impeached forhaving misappropriated these supplies-using them to retaininstead of to disband the soldiers. Danby, the Lord Treasurer,was impeached 'for that he had traitorously endeavoured tosubvert the ancient and well-established form of governmentin this kingdom, and the better to effect that his purpose, hedid design the raising of an army upon a pretence of waragainst the French king, and to continue the same as astanding army within this kingdom; and to that end he hasmisappropriated money, whereby the law is eluded, and thearmy is yet continued.' Nevertheless Charles and Jamesafter him in one way and another kept the army on foot.James seems to have had above 16,000 men. After Monmouth'srebellion courts martial sat to administer martial lawupon the soldiers. I have before me1 the record of one ofthese courts martial. Peter Teat and Peter Innes of CaptainBedford's regiment are tried by eighteen officers under oneof the articles of war lately issued which says that ' No officeror soldier shall use any traitorous words against the sacredperson of the king's most excellent majesty upon pain ofdeath.' They are condemned to be hanged.The Bill of Rights declared that one of James's offenceshad been that he had raised and kept a standing army intime of peace without consent of parliament, and quarteredsoldiers contrary to law; and further that the raising or keepinga standing army within the kingdom in time of peace,unless it be with consent of parliament, is against law. Thewords ' it1 time of peace ' should be noticed ; they certainlyseem to imply that in time of war the king may keep astanding army even without the consent of parliament.But before the Bill of Rights the first Mutiny Act hadalready been passed (I William & Mary, c. 5). The troopsfavourable to James were to be shipped off to the Low Countries.When they reached Ipswich a mutiny broke out. It wasClode, MzCitary Forces oftiie Crown, vol. I, p. 477.The Fiyst Mutiny Actnecessary to take rapid action, and a bill was hurriedly passedthrough parliament. It is a very brief affair to this effect:any soldier in the king's service who shall excite or join inany mutiny or sedition in the army or shall desert shall sufferdeath or such other punishment as by a court martial shallbe inflicted. Then follows a few sentences as to the constitutionof courts martial. It is provided that nothing in this actshall exempt any officer or soldier from the ordinary processof law; also that it shall not affect the militia forces, that itshall only be in force until the 10th Nov. next, that is for abouthalf-a-year, that nine out of thirteen officers constituting acourt martial must agree in passing sentence of death. Thatis the whole sum and substance of the first mutiny act. Theonly crimes that it sends to a court martial are mutiny,sedition, desertion ; and in no case is an officer or soldierexempted from the ordinary law. It should be added thatthough parliament was in haste, it was careful to state in thepreamble that the raising or keeping a standing army withinthis kingdom in time of peace, unless it be with consent ofparliament, is against the law. Also that no man may beforejudged of life or limb or subjected to any kind of martiallaw, or in any other manner than by the judgment of hispeers, and according to the known and established laws ofthis realm. By this time of course it was the orthodox beliefof all men that trial by jury was the judicium parizcm of theGreat Charter.From this time forward it became the regular practice topass temporary mutiny acts. For a while this was not donewith perfect regularity. On several occasions during thereigns of William and Anne there was for a few months nomutiny act in force. Sometimes on the other hand the actwas to endure for two years. But very soon the practicebecame settled of passing the act for one year only and ofpassing such an act in every year. All along through thelast century it was regarded as something exceptional, anevil of which we should get rid, if once we had a settledpeace. And so for two centuries, year by year, the statutebook was burdened by annual mutiny acts which alwaystended to become longer and longer.

PERIOD v Uizion with Scotland 33 IPERIOD V.Preliminary. .ON passing to our new point of view, it at once strikesus that our horizon is enormously widened. The parliamentsitting at Westminster is no longer the parliament of England,it is the parliament of Great Britain and Ireland. But eventhis, its title, does not express the whale of the vast territorywhich is subject to its legislative power. It can make lawsfor the whole of that huge collection of lands which it isconvenient to call the British Empire, but which we mustformally style the United Kingdom of Great Britain andIreland, its colonies and dependencies.Let us very briefly recount the stages whereby new landshave been brought into connexion with that system, the historyof which we have been tracing, and let us note the legal bondswhich bind these lands together.First as regards Wales. Its incorporation in the realm ofEngland is an old story, partly accomplished by Edward I,partly by Henry VIII. The great monuments are theStatutum Walliae of 1284, which declared that Wales wasnot merely a feudal dependency of the English throne butwas annexed to England ta~+tquam pars corporis ejusdem, andthe statute of 1535 which provided seats in parliament forrepresentatives of the Welsh counties and boroughs and introducedthe whole body of English law into Wales. Sothoroughly had Wales become a part of England that astatute of 1747 laid down the rule that in acts of parliamentthe name England should be deemed to include \Vales.On the death of Elizabeth King James VI of Scotlandbecame King James I of England ; but there was no union ofthe two countries; they had nothing in common but theirking; the parliament at Westminster could not make lawsfor Scotland, nor could the parliament at Edinburgh makelaws for England. The English judges did indeed hold inCalvin's case, 1608, that a person born in Scotland after Jameshad become king of England was not an alien in England,nor subject to the many disabilities to which aliens were thensubject, in particular the inability to hold English land. Butstill the two nations were two distinct nations. with twogovernments. James himself wished for a closer union ; hewanted to be king of Great Britain; but his subjects werenot prepared for this-he was merely king of England andking of Scotland. Under the Protectorate a closer unionwas realised; the Restoration, however, brought back theold state of affairs; Charles was king of England and king ofScotland.The union was effected on I May, 1707. Queen Annebecame queen of Great Britain. The Act of Union providedthat the two kingdoms should become one kingdom by thename of Great Britain, and that there should be not only oneking, but one parliament for the two. Sixteen of the Scottishpeers were to be chosen by their feilows to represent theScottish peerage in every parliament ; and the Scottish shiresand boroughs were to send forty-five members. The twolands, the two nations, were subjected immediately to thesame supreme legislative assembly ; the English parliamentceased to exist ; the Scottish parliament ceased to exist ;there was a parliament of Great Britain. It became and isto this day the established rule that every act of this parliamentapplies to both England and Scotland. If an act isnot to apply to Scotland, the act says so expressly; if it isonly to apply to Scotland, it says so expressly,This, however, does not imply that the two countriesbecame subject to the same laws. England kept and stillkeeps her common law in so far as it has not been abrogatedby statute; and English statutes passed before the Unionare still in force in England in SO far as they have not been

332 Cogstitutionad History PERIODabrogated by later statutes. To the same extent Scotlandkeeps her own common law and her own old statutes. AndScottish law differs considerably from English law. Inparticular, as regards private law, the Scots attribute anauthority to Roman law which it does not enjoy on this sidethe border. In the sixteenth century it had obtained a footingin Scotland, while from England it had been excluded owing tothe early concentration of justice in our king's courts and theactivity of our ancient parliaments'. So the Scots retainedand retain to this day a system of courts which is very differentfrom the English. Still since 1707 the two countries havebeen subject to one legislative body, fully competent tomodify or to abrogate any rules whether of Scottish or ofEnglish law.The Act of Union laid down certain rules as ' fundamentaland essential conditions of the union.' Of these the mostimportant related to the two churches of Scotland andEngland; their doctrines and discipline as established bylaw were to be inviolably preserved, and each king on hisaccession was to swear to maintain them. The fundamentaland essential character of these provisions is insisted on with somuch emphasis that we may say that the act goes near to anattempt to make law which no future parliament shall altergoesnear to such an attempt, but is not definitely guilty of it.It soon became the established doctrine that these provisions,like every other part of the law of England and Scotland,could be repealed by the parliament of the United Kingdom.Blackstone writing some fifty years after the union says thisdistinctly-'An act of parliament to repeal or alter the Actof Uniformity in England, or to establish episcopacy inScotland, would doubtless in point of authority be sufficientlyvalid and binding; and notwithstanding such an act the unionwould continue unbroken"' We have no irrepealable laws;all laws may be repealed by the ordinary legislature, eventhe conditions upon which the English and Scottish parliamentsagreed to merge themselves in the parliament of GreatBritain.See Maitland, E~tgIish Lazu and the Renaissance, Cambridge, 1901.Cofn~lze~ttaries, Introduction, $ 4 note.v The Irish Parliament 333To Irish history let us devote some little time. In I 169some English or Norman barons, Robert Fitzstephen, MauriceFitzgerald, Richard de Clare, known as Strongbow, landed inIreland, and began to take part in the quarrels of the Irishchieftains. Henry 11, fearing the establishment of an independentNorman state across St George's channel, went thitherhimself and obtained a submission from the barons and theIrish chiefs: they did homage to him. An English settlementwas formed in the eastern part of the island. It was dividedinto counties; the king granted charters to its boroughs, heappointed sheriffs and justices of assize. John took the titleof dominus Hiberniae. The English settlement was regardedas subject to the English common law, and so soon as Johngranted the Great Charter at Runnymede, it was sent over toIreland and published there1. The growth of a parliamentaryconstitution in Ireland, i.e. among the English settlers, wasparallel to the growth in England. In 1295 knights of theshire are returned to a parliament held by the viceroy ;burgesses appear there, though not it is said until Edward 111'sreign. We have Irish statutes of 1310, but from that yearthey are lost until 142g2. The colony, however, constantlyshrank-the colonists were constantly falling away into thebarbarism of the native Irish tribes. The authority of theEnglish king over Ireland reached at length its lowest pointin the reign of Henry VII, when it was confined to the fourcounties of 'the pale,' Dublin, Louth, Kildare and Meathand a few seaport towns. The Anglo-Irish had taken thepart of the House of York and had endangered Henry's crownby supporting pretenders. In 1495 he obtained from theIrish parliament a statute known by the name of his viceroyas Poynings' law. It provided that the statutes 'lately' madeby the English parliament should hold good in Ireland.Whatever may have been the meaning of the word 'lately,'the construction put upon it was that all English statutesFor the 'solemn and authoritative introduction into Ireland of the Englishsystem of procedure' in 1227 see Maitland in E~zsZ.fIi~it.Reu. July 1889,pp. 516-18.Record however exists of legislation for I 297, 1320, 1324, r 35 I, 1366, 1394,1402, 1409-10, see Statutes and Ordinances and Acts of the Pavliament ofIreland, ed. H. F. Berry, Dublin, 1907.

Constitutional FIistoryearlier in date than Poynings' Act were law in Ireland. Italso provided that no parliament should be held in Irelanduntil the viceroy should have certified to the king all suchacts as were to be passed, and such acts had been confirmedby the king and his council. Thus the king and his Englishprivy council obtained a check upon all proposals for legislationin Ireland. Thenceforward the authority of the kingbegan slowly to revive and extend itself. In I 541 Henry VIIIabandoned the old title Lord of Ireland for that of King ofIreland ; he was also Supreme Head on Earth of the Churchof Ireland. The attempt of Elizabeth to force the reformedEnglish liturgy upon a country in which the Protestantdoctrines had made no way led to rebellions, the rebellionsto repression. The power of James I was at least nominallyacknowledged throughout the whole island. It was all dividedinto shires ; the franchise was given to many boroughs, thenumber of members in the commons' house was brought upto 232 in 1613. Unfortunately the English persisted in theattempt to force a new religion upon the country, and vasttracts of land which had been forfeited by the treason ofrebellious lords were parcelled out among English colonistswithout regard for the rights of the Irish landowners. Therefollowed the rising of 1641 and the terrible reconquest of thecountry by Cromwell. Vast quantities of Irish land passedillto the hands of the Cromwellians, and at the Restorationmany of their titles were confirmed. Under James I1 theCatholic Irish very naturally took the king's side; they wereagain repressed by William; and then there was another greatconfiscation and redistribution of lands.During the reigns of William and Anne the severest lawswere passed by the Irish parliament for the suppression of theCatholic religion. Catholics were excluded from parliament,and in 1715 were deprived of the electoral franchise whichthey had hitherto exercised. Meanwhile a dispute broke outas to the relation between the English and the Irish parliaments.That Ireland was subject to the king there was nodoubt ; he happened to be king of England, but he was alsoking of Ireland-but was Ireland subject to the Engiishparliament ? could the English parliament make statutes forRejea l ofPoynings' ActIreland? The dispute becomes prominent under William 111.The English parliament passed an act for Ireland, the Irishparliament reenacted it with some alterations. The Englishlawyers, including Coke, had for some time past argued forthe supremacy of the English parliament. The medievalprecedents were not very decisive. The English theory wasthis-that Ireland was a colony, and that a colony was subjectto the legislature of the mother country. This general doctrinewas indisputable English law-even the English colonists inAmerica admitted that in a general way they were subject tothe parliament at Westminster, though they were soon to denythat taxes could be imposed upon them by the Englishlegislature. The proposition that Ireland was an Englishcolony was much more disputable. In 1719 the question wasbrought to a head by a dispute between the two Houses ofLords. Each asserted its right to act as a court which couldcorrect the errors of the Irish courts of law. A declaratoryact was then passed (6 Geo. I, c. 5) by the English parliamentto the effect that the English parliament has full powerto make laws to bind the people of Ireland and that theIrish House of Lords has no power to reverse or affirm thejudgments of the Irish courts. This act, being acquiesced in,definitely subordinated the Irish to the English parliament.Poynings' Act also remained unrepealed, and was so interpretedthat the parliament had little more than a power ofaccepting or rejecting the proposals of the crown.In 1782 the act of 1719 was repealed, and in 1783 theEnglish parliament passed a statute declaring that the rightof the people of Ireland to be bound only by laws enacted bythe king and the Irish parliament is established, and shall atno time hereafter be questioned or questionable. No appealswere to be brought from the Irish to any English courts.Poynings' law also was repealed by the Irish parliament. Foreighteen years Ireland was no more subject to England thanwas England to Ireland. The causes of this concession ofIrish independence, and of the union of 1800, lie beyond ourdomain : but understand that it was the union of two independentkingdoms, not the absorption of a dependent kingdom.The union took effect on I Jan. 1801. There was no

v The Chalznel Islands 337longer a kingdom of Great Britain and a kingdom of Ireland;there was a United Kingdom of Great Britain and Ireland.So again there was a parliament for the United Kingdom, in .which the Irish peers were represented by twenty-eight oftheir number chosen by them for life, and by four bishops sittingaccording to a scheme of rotation, and the Irish commons bya hundred members. Every statute of this parliament appliesto the whole of the United Kingdom unless some part of it isspecially excepted. As on the occasion of the union withScotland, articles were agreed on by the two parliaments; butthese articles possess no particularly essential or irrepealablenature. This we may see from the fate of what was probablyregarded as the most important of them-the churches ofEngland and Ireland were united in one church, ' The UnitedChurch of England and Ireland,' and the continuance of thisUnited Church was declared to be an essential and fundamentalpart of the union. In 1869 the union of the two churches wasdissolved, and the Irish church was declared to be no longeran established church.The laws in force in Ireland differ from those in force inEngland, but the differences are not so great as those whichseparate English from Scottish law. The acts of the Irishparliament are still in force in so far as they have not beenrepealed by statutes of the United Kingdom; but the basisof Irish law is English common law, which has been receivedever since the days of Henry VIII. In one respect Ireland iskept a little more distinct from England than is Scotland.From the earliest time the king has had a representative inIreland, a viceroy, lord-deputy, or lord-lieutenant, and the Iordlieutenanthas had a council corresponding to the council ofthe English king. In I 800 these institutions were not destroyed-there still is a lord-lieutenant, and he has a council ; practically,however, this does not mean any great degree ofseparation ; the executive government of Ireland like thatof England and of Scotland is de facto under the control of thecabinet. Just at one point, and that the highest, the judicialconstitutions of the three countries are united. The Houseof Lords serves as a court of last resort for English, Irish andScottish cases.The Isle of Man and the Channel Islands are not parts ofthe United Kingdom, though king and parliament can makelaws for them. The statutes made by parliament do notaffect them unless they are specially mentioned, or it is evidentfrom the context that they were within the purview of thelegislature. The appeal from their courts is not to the Houseof Lords, but to the King in Council. The interest of thesesmall dependencies lies in this, that the relation between themand England formed a precedent for the treatment of thevaster dependencies which have gradually collected round theUnited Kingdom.As regards these greater dependencies, we can say butlittle ; we may, however, apprehend certain very general principles.First we have to note a distinction as to the mode inwhich territories have been acquired-we must distinguishcolonization on the one hand from cession or conquest on theother. When a new country is colonized by Englishmen, theyare conceived to carry with them all such part of the Englishcommon law and all such existing statutes as are applicableto their circumstances ; to distinguish what is and what is notapplicable is the work of the courts which the king mayestablish among them, an appeal lying from those courts tothe King in Council. The king cannot legislate for them ; onthe other hand, king and parliament can legislate for them ;but the presumption is that a statute applies only to theUnited Kingdom, it does not extend to the colonies unlessthey are mentioned or it is plain that the statute was meantfor them. As regards territories conquered by the king'sarmies or ceded to him by a foreign power, the act of conquestor cession does not alter their law. The king canlegislate for them and a fortiori the king in parliament canlegislate for them-but they retain their old law, French orSpanish or Dutch or whatever it may be, until new laws aremade for them by the king with or without the concurrenceof parliament. The king also may grant to them representativeinstitutions of their own-may establish in themlegislative assemblies-and when such a grant has been madehe cannot revoke it. Over all these territories however obtained,whether by colonization or cession or conquest, whether they

v Colonial Cortstitutions 339have representative assemblies of their own or no, king andparliament are supreme ; but it is not considered that a statuteapplies to them unless the intention of the legislature that itshould do so appears on the face of the statute. The distinctionas to the mode of acquisition affects not the ultimatesupremacy of king and parliament, but the power of the kingto make laws without the consent of parliament-in a landobtained by cession or conquest he can make laws unlessstatute has said that he cannot : in what in the strictest senseis a ' colony ' he has no such power.As is well known, it was the attempt of the Britishparliament to tax the American Colonies which led to theWar of Independence and the formation of the United States.Already in 1766 we have an act (6 Geo. 111, c. 12) whichrecites that several of the houses of representatives in HisMajesty's colonies and plantations in America " have of late,against law, claimed to themselves the sole and exclusive rightof imposing taxes upon His Majesty's subjects in the saidcolonies and plantations" : it is then declared that "the saidcolonies and plantations in America have been, are, and ofright ought to be subordinate unto, and dependent upon theimperial crown and parliament of Great Britain"; and that theking and parliament of Great Britain have and of right oughtto have full power and authority to make laws and statutes tobind the colonies and people of America in all cases whatsoever.I believe that I am right in saying that the colonists did notdeny the general rule that the British parliarnent might legislatefor them, but disputed only its right to tax them. TheBritish parliament did not abandon its claim until it was forcedto acknowledge that the United States were free, sovereign,and independent : though during the progress of the struggleit promised by an act of 1778 (18 Geo. 111, c. 12) that it wouldnot tax North America or the West Indies for the purpose ofobtaining a revenue. The adverse issue of the war with theUnited States did not lead to any abandonment of the generalprinciple. Our parliament claims to legislate for all landswhich are subject to the crown of Great Britain, and the claimis no idle claim. To give but one instance, an instance on agreat scale ; in 1833 by an act of the parliament of the UnitedKingdom (3 and 4 Will. IV, c. 73) slavery was abolishedthroughout the colonies ; and though compensation was providedfor the slave owners, this of course was a vast interferencewith the rights of private property. From time to timeparliament makes laws for the colonies, thus the CopyrightAct extends to them. The presumptio~l of the courts, asalready said, is that a statute does not extend to them, andtherefore if parliament does mean to legislate for them, itgenerally says so in so many words. Even the right or powerto impose taxes has never been abandoned, though it is notexercised. Students of ~ustin'i Jurisprudence may find someinterest in noticing this case : the sovereign body habituallyrefrains from making laws of a certain class and must suspectthat if it made such laws they would not be obeyed.As to the constitutions of the colonies. Subject to thegeneral power of the British parliament there is considerablevariety-for some the king can legislate, others have representativeassemblies of their own. In these last the constitutionalorganization is modelled after that of the mothercountry-a royal governor represents the king, and thelegislative assembly consists of two houses ; but the upperhouse is not, like our House of Lords, a hereditary assembly.Their acts require the assent of the governor as representingthe crown-this gives them a temporary validity-but theyare liable to be disallowed by an order of the King in Council ;not being sovereign, their legislative powers are limited : theirstatutes may be void. In this they differ from the statutes ofthe parliament of the United Kingdom, which cannot be void.However (at least in general) no attempt has been made toenutnerate or specify the subjects about which a coloniallegislature may legislate, or may not legislate. The generalrule is laid down by an act of 1865 (28 and 29 Vic., c. 63):every law made by a colonial legislature is valid for the colonyexcept in so far as it is repugnant to any act of parliamentextending to the colony. This gives the colonial legislaturesliberal powers, for the number of acts of parliament whichextend to the colonies is not very great. Still a colonialjudge or (on appeal) the judicial committee of the PrivyCouncil may have to say (this colonial act is void, for it is

Constitutional Historyrepugnant to an act of parliament which extends to thecolony.'As to the laws in force in the colonies, of course they varygreatly. In most of them the basis is English common law ;but in some it is French law, in others Roman-Dutch law,that is to say, Roman law as expounded by the jurists ofHolland. Past history decides this matter : territories acquiredby conquest or cession from foreign states have generally beenallowed to keep their old laws. Then on the top of this basisof common law, whatever it may be, come those acts of theBritish parliament which affect the colony, and the acts ofthe colonial legislature.The Judicial Committee of the Privy Council (of theconstitution of which hereafter) is the supreme court ofappeal for all the king's lands outside the United Kingdom.The business that comes before it is of the most miscellaneouscharacter; the world has never seen a tribunal with such worldwidepowers. It has to administer Mohammedan law andHindoo law, French law, Dutch law, English law; it hasoften to consider whether the legislative acts of coloniallegislatures are valid or invalid, for instance, it may have tosay that a statute of the Canadian parliament is invalid asrepugnant to a statute which the parliament of the UnitedKingdom has made for Canada.It is impossible in a few words to say much that is profitableabout India, only let us remember this : that the parliamentof the United Kingdom which we are about to describeis supreme over India, can, and in matters of the highestimportance sometimes does, legislate for India.In speaking then of king and parliament we are no longerspeaking of what in strictness of language are merely Englishinstitutions ; the parliament represents the United Kingdom,and king and parliament have supreme legislative power overterritories which lie in every quarter of the globe. Of thisparliament we must speak. Below it there are many institutions,some of which are specifically English, specificallyScottish, Irish, Canadian, Australian, Indian; for example,the judicial systems of England, Ireland and Scotland aredistinct from each other, though at the supreme point theyNationality and Do?~ziciZeunite in the House of Lords. It is of great importance todistinguish those institutions which like the kingship andthe parliament are (we can hardly avoid the term) imperialinstitutions, from those which like the High Court of Justiceare specifically English, and I strongly advise you not to usethe words England and English when you mean what is largerthan England and more than English. When we have dealtwith the institutions which have power over all the Britishdominions, we shall, being Englishmen in an English university,deal with some purely English institutions, as withthe High Court of Justice, not with the Scottish Court ofSessions-but let us keep this distinction firmly in our minds ;if we are Englishmen, we are also subjects of a sovereignwhose power extends over millions and millions of men whoare not English.Let me illustrate this by one further remark. There aretwo conceptions which are of great importance to students ofinternational law: the one nationality, the other domicile.Now there is no such thing as English nationality, and there isno such thing as British domicile. The Englishman, the Scot,the Irishman, the Canadian, the Australian-all of these havea nationality in common ; if there be war between the UnitedKingdom and a foreign power, say France, all of them areenemies of the French, any of them who side with the Frenchare traitors. But there is no such thing as British domicilebecausethere is no one system of private law common to allthe British dominions ; a man is domiciled in England orScotland or New Zealand, and to a very large extent the lawunder which he lives varies with his place of domicile. IfI abandon my English domicile, and become domiciled inScotland, this will have most important legal results for me,but my nationality remains what it was. So by England letus mean England, a land which consists of fifty-two counties.There is another distinction which we must now keepconstantly in view: we are lawyers dealing with law, butan account of our present mode of government which spokeonly of legal rules would be an extremely inadequate andindeed a quite unintelligible account. To take the capitalinstance : everyone knows that the constitution of the cabinet

342 Coj~stitutionn l HistoryPERIODis a matter of the utmost importance-indeed a great part ofour political life is determined by the constitution of thecabinet for the time being-but most people know and everyoneought to know that the cabinet is a body unknown tothe law: as a body it has no legal powers, rights or duties.We have then to distinguish at every step what is matter oflaw, from what is not matter of law, from what is matter ofcustom or convention. The two are intimately intertwined;as Mr Dicey has shown in his excellent lectures on theConstitution1 (which I take this opportunity of strongly recommendingto your notice) the customs or conventions of ourconstitution derive their force, a force which is often felt to bequite as strong as the force of law, from the fact that they areso much mixed up with law that they could hardly be violatedwithout a violation of law. We must therefore keep this distinctionbefore us, arid whenever we come to a rule askourselves whether it be law or no, ask ourselves what wouldhappen if it were broken-would anybody be punished, and ifso how, or would there merely be a general outcry that adeparture had been made from sound constitutional precedent?The necessity for this caution is due in a large measure toour careful conservation of forms. Our queen to-day has bylaw almost all the power that Henry VII had by law; weknow that as a matter of fact our present kingship is radicallydifferent from the kingship of the fifteenth century ; but lawhas done little to take away powers from the king. When wehave insured by indirect methods that such powers shall notbe exercised without the approval of parliament, we haveconsidered that enough has been done-we have not cared topass a statute saying in so many words that such powershave ceased to exist. Whatever may be thought of thewisdom of this course, it renders the task of lecturing on ourmodern constitution a very difficult task. One is constantlybrought face to face with the question-what is it lawful forthe king to do? what might he not lawfully do if he wishedto go as near as possible to breaking the law? To find ananswer is often hard or impossible. Since the Revolution ourLectures Introductory to the Study of the Lazv of the Constitdion byA. V. Dicey, 6th ed. London, 1902.vY,gue lit~tits of Royal Prerogative 343kings have seldom gone near to breaking the law in seriousmatters-by all manner of indirect means they have beenpractically restrained from breaking the law, therefore wehave no modern precedents, and are thrown back on ancientprecedents, the applicability of which to the changed circumstancesof modern times can often be very plausibly disputed.The law then as to the extent of the royal prerogative in manydirections is often very vague, and often we have to solaceourselves with the reflection that any attempt to exercise theprerogative in these directions is extremely improbable.A. The Sovereign Body.I. The Kingsh$.The succession to the throne is settled by the Act ofSettlement upon the heirs of the body of the Electress Sophia,being protestants. It is needless to say that under theseterms a woman can succeed. A queen has all the powers ofa king. The husband of a reigning queen has no powers,he is not king unless an act of parliament makes him so.Philip of Spain, Mary's husband, bore the title of king, Anne'shusband was simply Prince George of Denmark. QueenVictoria's husband was simply Prince Albert of Saxe-Coburg-Gotha until 1857 when the queen conferred on him the titleof Prince Consort. He had no legal powers.'The king never dies,' in other words under the Act ofSettlement, and for some centuries before it, the heir begins toreign at the moment of the ancestor's death. The coronationtherefore does not seem to be a legally necessary ceremony.The terms of the coronation oath are however fixed bystatute-this statute passed immediately after the Revolutionhas come before us already1. The Act of Union with Scotlandfurther required an oath to maintain the two establishedchurches. George I11 thought that this oath stood in the wayof his giving his assent to a bill removing the disabilities ofthe Roman Catholics; but it seems only intended to givea religious sanction to the king's duty of maintaining thechurches according to the law in force for the time being,

Constitutional Historyand not to hamper his conscience when considering a proposedchange in the law : the queen's oath did not stand inthe way of the disestablishment of the Irish Church. Theking is also bound by the Act of Settlement either at hiscoronation or on meeting his first parliament, whicheverhappens first, to make a declaration against transubstantiationand other distinctively Roman doctrines prescribed by theAct of Settlement. He is also bound by the Act of Settlementto join in communion with the Church of England asby law established. He forfeits his crown if he holds communionwith the Church of Rome, professes the Popishreligion, or marries a papist; the crown then passes as if hewere dead to the next heir. There is no clause saying that heforfeits the crown if he ceases to be a member of the EnglishChurch, if, for instance, he becomes a Wesleyan Methodist.Under the Royal Marriage Act, I772 (12 Geo. 111, c. I I),the marriage of any descendant of George I1 is invalid unlessthe royal consent has been obtained ; but this does not applyto the issue of princesses married into foreign families, and issubject to a proviso that a descendant of George I1 whenof the age of twenty-five may signify to the privy council hisintention of marrying without the king's consent, and unlesswithin twelve months both houses of parliament object to themarriage, then he may lawfully marry.There is, I think, no way in which a reigning king cancease to reign save by his death, by holding communion withthe Church of Rome, professing the Popish religion or marryinga Papist, and possibly by abdication. I cannot regardthe events of 1327, 13gg or 1688 as legal precedents. I candeduce no rule of law from them : they seem to me precedentsfor a revolution, not for legal action. If we had a very badking, we should very probably depose him ; but unless heconsented to an act of parliament depriving him of the crown,the deposition would be a revolution, not a legal process.Even the king's power to abdicate, except by giving hisassent to a statute declaring his abdication may, as it seemsto me, be doubted.For the case of an infant king or a king incapable oftransacting business our common law makes no special provision.Its doctrine seems to be that the king is never underIn fad and Incapable Kingsage and never incapable: he can always give his assent toacts of parliament. This doctrine has in the past given riseto some curious fictitious transactions ; but ever since the endof the Middle Ages a royal minority has always been foreseenand provided for in advance by statute. Thus in 1830 astatute was passed (I Will. IV, c. z) to the effect that ifWilliam died while the Princess Victoria was under the ageof eighteen years, the Duchess of Kent was until the queenreached eighteen years to be her guardian, and was to exerciseall the royal powers, save that she was not to have power toassent to any act altering the Act of Settlement or the Actof Uniformity. This act did not take effect because the queenhad attained eighteen before her uncle died. A similar actwas passed in 1840, making Prince Albert regent if the queenshould die leaving an heir under the age of eighteen, theregency to continue until the heir should be eighteen. Thereis now no such act in force, and there is no immediate necessityfor one. It seems a common belief that a king attains fullage at eighteen or at some other age different from the usualtwenty-one ; but this is a mistake. By common law a kingis never under age, but statutes passed on various occasions,none of which are now in force, have chosen eighteen asthe age at which a regency shall come to an end. For anactual case of regency due to the king's infancy we have togo back to the case of Edward VI.Our law makes no provision for a case in which the king isdisabled from transacting business by mental or bodily illness.The question arose in 1788, but not in its most aggravatedform for a parliament was in existence, so there was no needto decide how a parliament could be summoned. Parliameptwas in existence but it stood prorogued, and according Itoprecedent when a parliament is prorogued it cannot proceedto business until the session has been opened either by theking in person or by commissioners appointed by him. Onthis occasion parliament met and proceeded to discuss whatwas to be done. Some maintained that the Prince of Wales(afterwards George IV) had a right or at least a legal claimto be regent. This contention, however, in accordance withpast history was overruled-in accordance with past history,

346 Constitz~tioazn Z HistoryPERIODfor the precedent of Henry VI's infancy might be regarded asconclusive of this point. It being decided, however, that theprince was to be regent by act of parliament, the questionarose how such an act could be passed. The Chancelloraffixed the Great Seal to a commission for opening parliament;a regency bill was introduced, and it was intendedthat the royal assent should be fictitiously given to this billby commission under the Great Seal. But before the bill waspassed the king recovered and no further proceedings werenecessary. The same difficulty occurred again in 1810. Theking became incapable, this time for good and all, at amoment when parliament stood prorogued. The precedentof 1788 was followed. The Houses agreed that the parliamentshould be opened by commission under the Great Seal, andthe Chancellor affixed it. A regency bill was introduced ; itwas carried through both houses, and a fictitious royal assentwas given to it by commission under the Great Seal. Thecommission asserted that it was issued by the king himself,by and with the advice of the lords spiritual and temporaland commons in parliament assembled. The royal authoritywas to be exercised by the Prince of Wales, subject to certainrestrictions as to the creation of peerages, the grant of officesand the like. These are the only modern precedents for thetreatment of cases for which our common law makes noprovision. Obviously the difficulty would be greater if therewere no parliament in existence.As regards 'the royal family,' a term of very vague import,there is little to be said. A king's wife, a king or queen'seldest son and eldest daughter, and the wife of the eldest son,enjoy a certain protection, if such it may be called, under theold statute of Edward I11 defining the crime of high treason.The eldest son of a reigning king or queen is born a peer ofthe realm, he is born Duke of Cornwall, he is not born to thetitle of Prince of Wales. All other sons and daughters of theking or queen are born commoners, and such they continueunless and until peerages are conferred upon them. A certainhonorary precedence is given to certain members of the king'sfamily by an act of 1539-31 Hen. VIII, c. lo--an act for theplacing of lords, but this is a trifle.The Lords SjirituadI I. The House of Lords.The House of Lords at present consists of about 540members and is thus ten times as large as under the Tudors1.First as to the bishops. Two archbishops and twenty-fourbishops have seats in it. When we last saw it all the Englishbishops sat there, including those whose sees were created byHenry VIII, or all except the Bishop of Sodor and Man,who has never had a seat, and whose absence is accounted forby the fact that in times past he was not a bishop of theEnglish church; it was only under Henry VIII that hisbishopric was made part of the province of York. No newsee was created until 1836 ; in that year the see of Ripon wascreated by Order in Council, and the bishop had a seat inparliament, but at the same time the two sees of Gloucester andBristol were fused together so that the number of bishops wasnot increased. Manchester was created under act of parliamentin 1847, Truro and S. Albans in 1877, Liverpool in 1880,Newcastle in 1882, and Southwell in 1883, all under acts ofparliament which provided that the number of bishops havingseats in the House of Lords should not thereby be increased2.The statutory rule now is that the two archbishops, the bishopsof London, Durham and Winchester, and twenty-one otherbishops-the first in order of seniority-have seats, the othershave no seats. There are now six bishops without seats exclusiveof the Bishop of Sodor and Man who never sits3.Between 1801 and 1869 under the Act of Union the IrishChurch was represented by one archbishop and three bishops,who sat there according to a scheme of rotation.The mode of making bishops remains just what it was inElizabeth's time; the chapters always elect the royal nominee ;if they did not the king would be able to appoint by letterspatent under the act of Henry VI 11.The number in Jan. 19 13 was 636.Wakefield was created in 1888, Bristol in 1897, Birmingham and Southwnrkin 1904.There are now (1913) ten bishops exclusive of the Bishop of Sodor and Manwithout seats : i.e. Southwark, Carlisle, Worcester, Gloucester, Llandaff, Rochester,Ely, Tmro, Newcastle, Chichester.

348 Constitu t iona l History PERIODThe vast increase that has taken place in the House ofLords is therefore an increase in the number of temporalpeers. It would be a great mistake to suppose that there aremany very ancient peerages in existence. Counting English,Scottish, and Irish peerages there are not a hundred which canbe traced as far as the Middle Ages, and about half of thesehave been merged in newer and higher titles. A year nowseldom goes by without the creation of half-a-dozen new peers.The power of creating new peers is obviously an importantengine in the hands of a minister. During the last centurypeerages were lavishly created for political purposes. UnderAnne in 171 I, twelve peerages were created at once in order tosecure a majority in the House of Lords. The lords resistedthis, and by the peerage bills of 1719 and 1720 they soughtto limit the king's power of creating new peers by a provisionthat when six more had been created the maximum numberwas to be reached. The king himself was willing to consentto this, but the bill was rejected by a large majority in theHouse of Commons, and thus a great change in our constitutionwas averted. In much more recent times the power ofcreating new peers has been used for a great end. In 1832the House of Lords was practically coerced into the passingof the Reform Bill by the knowledge that if they againrejected it the king was prepared to consent to the creation0.f eighty new peerages. Thus a threat to create new peeragesmay be a potent political instrument; but for obvious reasonsa minister would shrink from using it save in an extremecase-he could not see the end of his action; he would becreating heritable rights, and the political opinions of heirsare not always those of their ancestors. For centuries past,as we have seen, the invariable mode of creating peers hasbeen by letters patent; usually they confer the dignity andthe consequent right to a writ of summons on the granteeand the heirs of his body, but occasionally other forms ofgrant are adopted. As we have already seen in 1856 theHouse of Lords maintained that the grant of a peerage merelyfor the life of the grantee would not entitle him to a seat inparliament: that was the result of the Wensleydale case. Afew ancient baronies created by writ are still in existence.v Scottish and Irish Peers 349'CVe have now to notice that a peer may be a peer ofEngland or of Scotland or of Ireland or of Great Britain orof the United Kingdom. When Scotland and England wereunited Scotland possessed a large peerage of its own. Therewere, I think, 154 Scottish peers and but 168 English1. Theplan adopted was this-only sixteen Scottish peers were to sitin the House of Lords. These sixteen were to be elected bythe whole body of Scottish peers to represent them for a singleparliament. All the Scottish peers, however, were to enjoythe other privileges of peerage, the freedom from arrest andthe right to be tried before the House of Lords. Since theAct of Union the king has not been able to create a purelyScottish peer, or for the matter of that a purely English peer:the peers created were (if not peers of Ireland) peers of GreatBritain, who, as such, would have hereditary seats in theHouse of Lords. Thus the number of Scottish peers whoare to elect the sixteen representatives could not be increasedand has steadily dwindled : for to say nothing of the extinctionof peerages by failure of heirs, many Scottish peers have beenpromoted to peerages of Great Britain, and when this happensthe peer so promoted having himself a hereditary seat in theHouse of Lords is no longer eligible to serve as a representativeof the Scottish peerage. Such promotions have becomeso frequent that the day seems coming when there will be nomore than sixteen peers of Scotland and they will be able toelect themselves. I believe that there are now only aboutthirty-two peers of Scotland who are peers of Scotland andno moreP.On the union with Ireland a plan in some respects similar,in others dissimilar, was adopted. The Irish peerage was tobe represented in the House by twenty-eight representatives,elected however for life. It was provided that one new Irishpeerage might be created whenever three Irish peerages hadbecome extinct until the number was reduced to a hundred,and that then it might be kept up at that figure. Sir WilliamSee Pike, Constitutzonal Histovy of Uc House of lords, pp. 360, 368.The number of such Peers has now (1913) sunk to nineteen, for of theeighty-six Scottish Peers, fifty-one have Imperial titles, while sixteen are electedto the Imperial Parliament.

350 Constitutional History PERIODAnson1 says that it was provided that the number shouldnever fall below a hundred, but that seems to me a distinctmistake (39 and 40 Geo. 111, c. 67, art 4, 'it shall and may belawful '). The king therefore since the Act of Union has had,and he still has, a certain limited power of creating Irish peers ;the other peers that he creates are peers of the United Kingdomwith hereditary right to be summoned to parliament.An Irish peer who is not a representative peer is capableof being elected a member of the House of Commons for anyplace in Great Britain, but not in Ireland; while he has aseat in the House of Commons he is treated for many purposesas a commoner; he has no right to be tried by the peers; theother Irish peers whether representative peers or no havesuch a right. On the other hand a Scottish peer, even thoughhe is not a representative peer, is disqualified from sitting inthe House of Commons.In 1876 a new class of peers was created, namely Lordsof Appeal in Ordinary. By the Appellate Jurisdiction Actof that year (39 and 40 Vic. c. 59) power was given to thequeen to appoint at once two Lords of Appeal in Ordinary,and on the happening of certain events the number might beraised first to three and then to four; there are now four.The persons to be appointed were to have certain qualificationsprescribed by the act, namely to have held certain highjudicial offices or been barristers or advocates for a certainnumber of years ; they are paid salaries ; and it is their dutyto take part in the judicial proceedings of the House of Lords.Under the act of 1876 they hold their offices during goodbehaviour, but are to be removable upon an address presentedby both Houses of parliament. Their dignity was not to beinheritable ; but so long as they held office they were for allpurposes to be peers of the realm and members of the Houseof Lords, capable of sitting, debating and voting as well whenthe House was acting as a legislative assembly as when it wasacting as a court of law. Much stress was laid upon the factthat they were not to be life peers, but official peers ; theirposition was compared to that of the bishops. However afew years afterwards one of the lords first appointed, LordLaw and Czisfom of the Corzstz'fution, Parliamenf, 3rd ed. p. 197.Lords ofAppealBlackburn, resigned his office. Under the act of 1876 hewould thereupon have ceased to be a peer, but by an act of1887 (50 and 5 I Vic. c. 70) it was decreed that the Lord ofAppeal in Ordinary might continue a member of the Houseof Lords during the remainder of his life, notwithstanding aresignation of his office. Thus in fact these peerages havebecome rather life peerages than official peerages.As to the causes which may disqualify a man from sittingand voting in the House of Lords I may refer you to whatSir William Anson says about alienage, bankruptcy, infancy,felony, and a sentence of the House1. We ought of course todistinguish a disqualification from sitting and voting from aforfeiture of the peerage. Down to modern times it waspossible that a peerage might become extinct for goodand all owing to the commission of a treason or a felony.Owing to successive mitigations of the law beginning withan act of 1814 (54 Geo. 111, c. 145), it is now-a-days, I think,practically impossible that a peerage should become extinctin this manner; but I am not sure that it is absolutely impossible.Suppose a: peer committed treason or felony andwas outlawed for it, the peerage would, I think, be forfeited ;but in practice the process of outlawry has become obsolete.I I I. The House of Co?nmons.Now as regards the members of this House we have to askhow many there are, by whom they are elected, who may beelected, how they are elected.(I) We have watched the fluctuations of numbers in theEnglish parliament down to the end of William 111's reign :we left them at 513. On the union with Scotland in 1707,45 Scottish members were admitted into the parliament ofGreat Britain. On the union with Ireland in 1801, 100 Irishmembers were admitted into the parliament of the UnitedKingdom. Thus the number became 658. The new ReformActs have made but little difference in the total number ofmembers or their allotment among the three kingdoms. Thereare now 670, 495 for England (in which I always includeLaw and Custo~rz of the Consfifzctiorz, Parliarnenf, 3rd ed. pp. zr 1-13.

Const itutiona Z HistoryWales), 72 for Scotland and 103 for Ireland ; the greatestchange is that the number given to Scotland has risen from45 to 72.(2) The history and the present state of the law touchingthe qualification of voters in counties and boroughs is a complicatedmatter if one attempts to study it at all thoroughly.I strongly recommend to you Sir William Anson's chapter onthe subject, which seems to me a very good elementary statement].There is also an article on the recent act, the act of1884, by Sir William Anson in the first number of the LnzwQuarterly Review, which, I think, will be of assistance to youin unravelling a tangled skein. I intend to speak at somelength of this matter, and I shall not follow Sir WilliamAnson's treatment, not because it is not good-perhaps itis the best possible-but because it would be idle for meto repeat what is in a book which is, or should be, in yourhands, and because it is desirable that we should look atevery point of the law from several different points of view.The intricacy of the law is due to the fact that, after havingremained almost unaltered for a period of four centuries, ithas three times during the last sixty years been radicallyreformed. I refer, of course, to the Reform Act of 1832and the Representation of the People Acts of 1867 and 1884.The changes made by these acts have been very great, butthe law as a whole has never been codified or restated ; onehas still to consider the law as it stood before these actsand to see exactly in what respects it has been modified bythem, also to see how the earlier acts have been patched andtinkered by the later.One more word of preface. You will find that all throughour history the qualification of the voter has dependedin some manner or another on his relation to what, looselyspeaking, we may call real property (some land or tenement,or again, some dwelling-house) situated within the county orborough. Now we have to consider what sort of a tenementwill do, whether a dwelling-house is necessary, whether awarehouse in which nobody sleeps is sufficient, whether landwithout buildings is enough (again, whether an incorporealLaw ntzd Custom of the Constitution, PaYliament, 3rd ed. c. v.Qzca Zzfication of Electorshereditament such as tithes or a freehold office will give thevote), and also what must be the value of the tenement,whether 40 shillings or £12 or £50, and how the value is to bemeasured, is it measured by rental, or is it measured by theassessment to poor rates? but (and to this I draw attention)we must also consider what is the requisite relation betweenthe voter and the tenement. Different relations have beenrequired at different times, by different statutes, for differentpurposes. Sometimes the relation is proprietary, the votermust have an estate or interest of a particular kind in thetenement: a freehold estate may be necessary, or again acopyhold estate may be enough, or a leasehold interest. Andagain, lines have been drawn between various estates of freehold.Sometimes again, proprietary right is not enough, theremust also be possession : it will not, for example, suffice thatyou are entitled to a rent-charge, it is required that you be inpossession of it. Or again, the statute may insist not onproprietary right but upon occupation, and occupation againis an idea which has required a great deal of definition atthe hands of the courts. Does a servant occupy his master'shouse which has been left in his sole charge while his masterlives elsewhere? Does an undergraduate, does a fellow ofa college occupy what we call ' his' rooms in college, or arethey occupied by the college, by the corporation? Again,the statutes sometimes insist on something more than occupation: the voter must be an inhabitant occupier, and I mayoccupy a house that I do not inhabit. In reading the acts,then, one must carefully observe how they describe the relationbetween the man and the thing, whether they call forproprietary right, or for possession, or for the two together,or for occupation or for residence. Lastly, some of thestatutes have made the payment of rates an essential partof some of the qualifications, and this has been done in aperplexing way.Now the county and borough franchises have always been,and still are, distinct things depending on different rules. Thelast statute, that of 1884, has introduced much more uniformitythan there formerly was. Still, however, one cannot speak ofthem in the same breath ; a qualification which would serve

Constitz.ctional Historyfor a county will not always serve for a borough, nor viceversa. However, in the historical sketch that I am now tobegin I shall treat them together, (that is to say) the sketchwill naturally fall into four periods : (a) before 1832, (b) before1867, (c) before 1884, (d) after 1884, and in each period Ishall speak first of the county, then of the borough franchise.The history of the Scottish and Irish franchisesdiffers in many details from that of the English, thoughon the whole it has followed the same general course. Ifear that here we can say no more of it. As regards theEnglish counties we must go back to the act of 1430(8 Hen. VI, c. 7) : the knights of the shire are to be chosenin every county by people dwelling and resident in the samecounties whereof every one of them shall have free land ortenement to the value of 40 shillings by the year at the leastabove all charges. An act of 1432-10 Hen. VI, c. 2-explained that the freehold was to be within the county forwhich the election was to be made. It may be doubted whetherthe object of these measures was to exclude from the electionany large class of persons who had habitually taken part inthem; but the result was to establish a qualification byproperty, and one which at first was fairly high, though,owing to the change in the value of money, it becamevery low. You will observe that the act of 1430 requiredof the voter not only freehold, but also residence withinthe county. This requirement however-I do not exactlyknow how or when-fell into oblivion, and was swept awayas long obsolete by a statute of 1774 (14 Geo. 111, c. 58).At the same time a still older requirement that the electedknights and burgesses should be resident in their countiesand boroughs, a requirement as old as 1413 (I Hen. V, c. I),was abolished: this also had long been disregarded. Thequalification for county electors thus came to be definitely aqualification by property, the having free land or tenement, thehaving freehold to the value of 40 shillings. Observe that anyfreehold estate of the requisite value would give the franchise,even an estate for life or pur autre vie. In 1832 the mainobjection to the county qualification was not that it was toohigh, but that it was extremely capricious ; a leaseholder orThe Unreformed Frn fzchisecopyholder, no matter how valuable his interest, had no vote ;on the other hand, a rent-charge of 40 shillings for life wasenough ; votes have been claimed in respect of freehold pews,and, it is said, in respect of freehold graves. This, of course,made the manufacture of qualifications an easy matter. Severalstatutes of the last century attempted to guard against thisabuse. In particular an act of 1745 (I 8 Geo. 11, c. 18, sec. 5 )required that the voter should be in actual possession or inreceipt of rents and profits of his freehold estate for twelvemonths, unless that estate came to him by descent, marriage,marriage settlement, devise or promotion to a benefice oroffice. The idea was this: that if you acquire title by suchmeans as these, it is needless to insist on possessiotz,; if, onthe other hand, you acquire it by sale or by gift i~zter vivos,there is danger of an attempt to manufacture votes, and soa certain length of possession is required in order to provethe good faith of the transaction.You should further understand that until 1832 no list ofvoters was prepared beforehand. Since the Reform Act thequalifications by property, occupation and so forth are notstrictly speaking qualifications entitling one to vote-theyare qualifications entitling one to be placed on the registerof electors, and the only qualification that (in strictness) entitlesone to vote is the fact that one is a registered elector.Until 1832 the would-be voter appeared at the poll, tenderedhis vote, and then and there swore an oath prescribed bystatute to the effect that he had the requisite qualificationthathe had freehold, was in possession and so forth. Theprocedure now is quite different-no one can vote who is noton the register of voters, and on the other hand the registeris for many purposes, though not for all purposes, conclusivethat the persons whose names are there are entitledto vote.As to the boroughs, before the act of 1832 the requisitequalification varied from borough to borough-there was nogeneral law, statutes had hardly meddled with the matter,each borough had its own history, and the matter was settledfor it either by the terms of its charter, or by ancient usage.Sir William Anson has a few pages on this subject which

356 Coastitutionad History PERIODseem to me so extremely good that if I went over the sameground I could only paraphrase them1. The qualificationsthough they were very various fell into several great classes.First there was tenure. A few towns which by charter hadbeen made counties of themselves had adopted the countyqualification. There are, I believe, now seventeen towns(besides London) which are counties of themselves, or countiescorporatea. In some of these the county qualification was adopted-namely,forty-shilling freehold. In some other townsburgage tenure gave the franchise. Rurgage was a varietyof socage found in some ancient boroughs, important in theMiddle Ages, for the burgage tenement was generally devisableby custom long before freeholds in general were made devisableby statute. Residence, qualified in this way or in that, constituteda second head. I believe that if there was no charterand no usage to the contrary, the right was considered to bevested in 'the inhabitant householders,' and so if any qualificationcan be spoken of as the common law qualification, it isthis. Very often indeed the right might be exercised by thosewho paid scot and lot, or to be more exact, who paid scot andbore lot. This phrase refers to a participation in the ancientlocal burdens-' scot ' refers to the money payments ; ' lot ' towork done in person-men were compellable, for instance, tofill municipal offices: to be mayors, aldermen, constables, andso forth-those liable to burdens of this sort bore lot. Inmodern times liability to poor rate was taken as the generaltest-the person who was rated was deemed to pay scot andlot. Sometimes the right was vested in those who by a queermistake came to be called potwallers, or even potwallopers;the mistake arose from reading an old fashioned W as a B-the word is really potboilers. Here the constitution wasdemocratic indeed : even householding was unnecessary ; thesole dominion of a single room having a fire-place in it wasLaw and Custorz of the Co~tstiti~ution, Parliament, 3rd ed. pp. 103-5.a The Local Government Act of 1888 (5 I and 52 Vict. c. 41) created forty-fourrnunty boroughs in addition to the seventeen already existing and provided thatally town might be constituted a county borough by order of the Local GovernmentBoard on attaining a population of 50,000. At the census of 1901 therewere sixty-seven county boroughs.The Fz'rst Reforr~z Actenough. In a third great class of boroughs the persons entitledto vote were the freemen, that is, the members of themunicipal corporation which had been created by charter;freedom of the borough, membership of the corporation, wasacquired in many ways ; some were born free, others obtainedfreedom by marriage, or by really or nominally serving asapprentices of some freeman in his craft or trade; the freedomof the borough might in some places be given or sold. InLondon, membership of one of the trading companies, thelivery companies, became necessary. Lastly there were whatwere often known as the close boroughs ; in these the rightto vote was restricted by royal charter to the governing bodyof the borough-often a small knot of aldermen who electedtheir own successors. Such charters were the outcome of theefforts on the part of Tudors and Stuarts to obtain more manageableparliaments-not too successful, for these boroughsoften fell under the influence of the great landowners andbecame pocket boroughs.Such, put briefly, was the state of things before the firstReform Act. Now as to the English counties, that act alteredthe old and introduced several new qualifications. Theold qualificationwas the forty-shilling freehold. As to this, it requiredthat the person claiming to be registered should either (I) bein actual occupation of the tenement in respect of which hebased his claim, or (2) have an estate of inheritance in it, or(3) should have acquired his estate by marriage, marriage settlement,devise or promotion, or (4) should have an estate worth£10 a year. To put the matter another way, it deprived of thefranchise freeholders whose freeholds were worth 40 shillingsbut less than LIO, if their freeholds were (a) not estates ofinheritance, (b) not acquired by marriage, marriage settlement,etc., and (c) not in their own actual occupation. But of coursethe more important change was that the act invented severalquite new qualifications. It entitled to the vote (I) any personseised at law or in equity of any land or tenement of copyholdtenure, or any tenure other than freehold for life or forany greater estate of the clear yearly value of £10 or upwards;(2) any person entitled as lessee or assignee to any lands ortenements for a term of years originally created for a period

Constitu f ionn Z Historyof 60 years or more of the clear yearly value of £10; (3) anyperson entitled as lessee or assignee to any lands or tenementsfor a term of years originally created for a period of not lessthan 20 years of the clear yearly value of £50; (4) everyperson who occupies as tenant any lands or tenements forwhich he shall be liable to a rent of not less than £50.Thenceforwards then the classes of voters were (a) theforty-shilling freeholders, but as we have already seen theforty-shilling freehold would not in all circumstances givethe vote: £10 was required in certain circumstances of thosewhose estates were but for life; (p) the £10 copyholders;(y) the £10 long leaseholders ; (6) the £50 short leaseholders;(6) the £50 occupiers. An occupation franchise was a quitenew thing in the counties ; the person occupying a tenementat a rent of &so was to have the vote no matter what thecharacter of his tenancy. Observe also that in this case theamount of rent payable was made the important thing-hewas to be liable for a yearly rent of not less than £50.As to the boroughs the act greatly simplified the complicatedstate of affairs which was then in existence. It introducedone uniform qualificatiotl into boroughs: the claimant mustoccupy as owner or tenant any house, warehouse, countinghouse,shop, or other buil'ding of the clear yearly value ofLIO, he must occupy for twelve months next before the fixedday, he must (if a poor rate has been made) have been ratedand have paid his rates, and he must have resided for the lastsix months within the borough or within seven miles of it;note the difference between residence and occupation. From1832 to 1867 this was the uniform qualification in all boroughs,generally spoken of as the £10 occupation franchise. As tothe old qualifications, which I may remind you varied fromborough to borough, the act in a general way saved theexisting rights of persons who were entitled to vote but imposedupon them certain restrictions. This saving we neednot consider for its force must now be spent. But, and thisis more important, it saved ~ermanently certain qualificationsas regards boroughs in which those qualifications already existed.These, I may say once for all, are still saved, thoughowing to more recent extensions of the franchise they are noMzmicz2a Z Re formlonger of much moment. The qualifications saved were these :(I) the qualification of freeholding or burgage holding in thosetowns being counties of themselves in which such qualificationalready existed ; (2) the qualification by being a freeman, orby being a burgess, or by being a freeman or liveryman inthose boroughs in which these qualifications already existed.Rut the qualification by being a freeman of the borough, ora burgess of the borough, that is by being a member of themunicipal corporation according to its then constitution, wasput under restrictions ; residence in or within seven miles ofthe borough was required, and for the future freedom of theborough was not to confer a title to a vote unless acquiredeither by birth or by servitude. In some boroughs thereforeone still meets with persons who are entitled to be registeredas freemen.For the boroughs then the Reform Act introduced oneuniform qualification ; some other qualifications it preservedwhere it found them, but only where it found them, and thatin a very modified form.Parenthetically we may notice that the ParliamentaryReform of 1832 was followed almost immediately by theMunicipal Reform of 1835. Practically and with the exceptionof London the municipal constitution of all the boroughswas remodelled on one uniform plan. Every person whooccupies a house, warehouse, shop, or other building in theborough for which he pays poor rates, and who resides withinseven miles of the borough, is entitled to be enrolled as a burgess,a member of the corporation; the municipal corporationconsists of the burgesses thus enrolled. Before the act the ,members of the corporation, the freemen as they were called,were often very few. In Plymouth, where the populationwas 75,000, the number of freemen was 437 and I45 of themwere non-resident. In Ipswich less than two per cent. of theinhabitants enjoyed corporate privileges, and of that two percent. a large number were paupers. I have said that thequalification by freemanship has been to some extent retained;but you shoulu understand that the man who isburgess of a borough under the Municipal Corporations Actshas not as such any right to a vote. It is probable now-a-

Constit~tio?zaZ Hisf orydays, owing to more recent extensions of the parliamentaryfranchise, that the burgess will have a vote for the boroughif indeed the borough returns a member. But this is notnecessarily the case. A municipal borough is not as suchentitled to be represented, many municipal boroughs havenow no members of their own ; again, the geographical limitsof what is called the parliamentary borough may well bedifferent from those of the municipal borough, and again,though these limits coincide, yet a burgess may have no votein a parliamentary election, while one who is no burgess mayhave a vote; the lodger for instance has now a vote, but isnot entitled to be enrolled as a burgess. The two thingsmust be kept distinct. The main right of the burgess assuch is that of voting in the election of town councillors whomanage the affairs of the borough.We come to the act of 1867. As to the counties thisdid in the main two things. (I) You will remember that inseveral cases the act of 1832 required that the qualifyingtenement should be of the yearly value of £10 ; this was thecase as to estates for life except in certain circumstances, asto copyhold estates, and as to long leaseholds, that is, termsoriginally created for 60 years or more. In all these cases thenew act substituted £5 for £10, thus lowering the propertyqualifications. (2) In the second place, it lowered the occupationqualification, or speaking more strictly it introduceda new occupation qualification ; the person entitled must havebeen for the last twelve months the occupier as owner ortenant of a tenement of the rateable value of £12, must havebeen rated to the poor rate-if any has been made-andmust have paid his rates. The then existing qualification byoccupation consisted, you will remember, in the occupation ofa tenement at a rent of £50 ; this was not swept away ; thenew qualification was placed by its side, and it is quitepossible, at least in theory, that a man should be payinga rent of £50 for a tenement rated at less than £12. In thecounties then the act of 1867 lowered some of the qualificationsby property, and it introduced a new qualification byoccupation-occupation of a tenement worth £12 rateablevalue.The Second Refo~m ActIn the boroughs the changes were yet larger. Two quitenew qualifications were introduced beside the occupation qualificationof 1832-what are generally known as the householdand the lodger franchises were created. The former can beclaimed by a man who has been for a year an inhabitantoccu$ier as owner or tenant of any dzuell'ilzg-house within theborough, has been rated to any poor rate made during thatperiod and has paid his rates. The latter can be claimed byany man who for a year has occupied as lodger the samelodgings of the clear yearly value of Are, if let unfurnished,and who has resided during the whole qualifying year. Thequalification in these cases you observe consists not in mereoccupation but in inhabitance or residence ; one must be theinhabitant occupier of the dwelling-house; one must residein the lodgings, and while the lodgings must be worth £10a year any dwelling-house will do. So large a definition ofa dwelling-house has now been given by statute, one so muchlarger than the ordinary meaning of the word, that it is sometiniesvery difficult to mark off the inhabitant occupier of adwelling-house from the lodger who resides in lodgings.The act of 1884, to which we now come, is a very clumsydocument. What it does however, broadly stated, is this :-it extends to the counties the £10 occupation franchise, thehousehold qualification, and the lodger qualification whichhad been introduced into the borough in 1867. The householdqualification, you will remember, is that of the inhabitantoccupier of a dwelling-house of any value, however small.The lodger qualification is that of a lodger who occupies andresides in lodgings of the value of £10. But both for countiesand for boroughs the household qualification is extended or,if you please, a new qualification is created by a provision asto servants. If a man (A) himself inhabits any dwellinghouseby virtue of any office, service or enlployment, andthe dwelling-house is not inhabited by any person (B) underwhom such man (A) serves in such office, service or employment,he (A) shall be deemed to be an inhabitant occupier ofsuch dwelling-house as tenant. You see for what sort of casethis section provides: my gardener who as such lives in acottage of mine, paying no rent but getting less wages in

Co~~stitzctio?dn Z Historyconsequence, is to have a vote : but for this section he wouldhave had none; my butler who lives in the house that Iinhabit will still have no vote. Then again the occupationqualification in the counties and boroughs was remodelled.The same qualification is to serve for both, namely occupyingany land or tenement of a clear yearly value of £10. Thislowered the qualification in counties where the requisite valuehad been £12 rateable value. It extended the qualificationin boroughs where up to that time the tenement which wouldgive this qualification was not any land or tenement, butany house, warehouse or other building. It thus made theoccupation qualification much the same in counties and inboroughs; not however quite the same-a condition of residingin or within seven miles of the borough is imposed onthe borough voter, from which the county voter is free.Broadly speaking then the result is this-there are threequalifications which prevail throughout all England, whetherthe place be in what for this purpose is called a county, or inwhat for this purpose is called a borough; these are (I) thequalification of the inhabitant occupier of a dwelling-house,(2) that of the occupier as lodger of lodgings of the value of£10, (3) that of the occupier of any land or tenement of thevalue of £10. Besides these we have in the counties theproperty qualifications-including the old forty-shilling freeholdqualification, which has been subjected to certainrestrictions, the £5 copyhold qualification, and the $50 and £5leaseholder qualifications.It remains to be noticed that the Reform Acts, especiallythe last, have effected a very great change in the whole schemeof representation. Nominally we can still divide membersinto borough members and county members-and the distinctionis still of some importance, because, as we have just seen,certain qualifications still exist in what are called counties,which will not serve for what are called boroughs. But intruth any talk about counties and boroughs is apt now-a-daysto be misleading.In the first place, since 1832 parliamentary organizationhas been quite separate from municipal organization. Theso-called borough member now often sits for a district whichThe Thiyd Reform Acthas no municipal organization. This since 1884 is veryfrequently the case. The larger towns have been cut up intodistricts, each of which returns a member to parliament foritself. Thus take Liverpool : no member sits for the rnunicipallyorganized borough of Liverpool, a member sits for theAbercromby division of Liverpool, another for the Evertondivision, another for the Exchange division, and so forth ; soEast Manchester has its member, and North-East Manchester,and so forth. The counties again have been cut up intodistricts. Cambridgeshire as a whole has no members, but theChesterton Division of Cambridgeshire has its member, 2ndthe Newmarket Division, and the Wisbech Division. Again,often it happens that the area which returns members islarger or smaller than the area which has a municipal constitution.In short the tendency of the act of 1884 was tosplit up England into electoral districts, some known asdivisions of counties, some known as boroughs or divisionsof boroughs, which shall, roughly speaking, have equal populations.This principle was not rigorously carried out, somerespect was had to already existing arrangements, but stilla large step was made towards a parcelling out of Englandinto equal electoral districts.The ancient idea of the representation of communities, oforganized bodies of men, bodies which, whether called boroughsor counties, constantly act as wholes, and have common rightsand duties, has thus given way to that of a representation ofnumbers, of unorganized masses of men, or of men who areorganized just for the one purpose of choosing members.A list of the electoral qualifications should be followed bya list of the causes of disqualification. The disqualified classesare women, infants, peers (not being Irish peers with seats inthe House of Commons), returning officers and persons concernedin the election as agents, clerks, messengers or the like,aliens, persons of unsound mind, persons convicted of treasonor felony until they have served their terms of punishment orbeen pardoned, and persons convicted of certain electoralmalpractices, persons in receipt of parochial relief or otheralms; the exact extent of this disqualification by receipt ofalms is not very well ascertained.

364 Constitutional History PERIOD Re Zigiozts DisabilitiesUntil lately a good many persons were disqualified bystatute in consequence of their employment in governmentalposts, in particular revenue officers and policemen, but thedisqualification of revenue officers was removed in 1868, andthat of policemen in 1887, and I think that there can now behardly anyone disqualified by reason of his employment,except returning officers and the agents and canvassers, etc.,of the candidates. The clergy seem to have voted at leastever since the time when they ceased to be taxed by the&convocations.(3) As to the qualification of members returned. I willtake them almost in Sir William Anson's order, with the viewof making a few additional remarks. I pass by (I) infancy,(2) insanity, (3) want of British nationality, (4) peerage,(5) clergy; the clergy of the established churches of Englandand Scotland are excluded, so also the clergy of the Romishchurch : ministers of other religious bodies are not excluded.Women are excluded-Sir William Anson appears to haveforgotten this, but there can be no doubt that this is commonlaw. The fact that peeresses have never sat in the House ofLords seems by itself conclusive. I do not think that awoman has ever been elected to the House of Commons.Bankrupts are disqualified by statute. Persons convicted oftreason or felony and sentenced to death, penal servitude, orimprisonment with hard labour, or imprisonment for more thana year, are incapable of sitting until they shall have sufferedthe punishment or been pardoned. This by statute of 1870,but it seems that common law would exclude convictedtraitors and felons. It remains to speak of religion, office andproperty.The history of parliamentary oaths and religious disabilitiesis very intricate, and I am not at all certain that I have got itstraight. But it begins in 1562 with the statute 5 Eliz., c. 1,13, which required every member of the House of Commonsto take the oath of supremacy-to swear that the queen is onlysupreme governor of this realm as well in spiritual as intemporal causes, and that no foreign person or potentate hasany authority ecclesiastical or spiritual within this realm. In1609 an oath of allegiance was added (7 Jac. I, c. 6), to theeffect that the king is lawfully king, and that the pope has nopower to depose him. In 1678 (30 Car. 11, stat. 2, c. I) tothese oaths was added a declaration against transubstantiation,the invocation of saints and the sacrifice of the mass: andthe two oaths and this declaration were required of lords aswell as commons. The doors of both Houses were thuseffectually closed to members of the Roman church ; some ofthem might be ready to take the two oaths which related tochurch government, but the declaration as to doctrine wasutterly incompatible with their most fundamental beliefs.Immediately after the Revolution the two oaths of allegianceand supremacy were altered in form, the first was to bemerely this, ' I will be faithful and bear true allegiance toKing William and Queen Mary'; the second was 'I do abhoras impious and heretical the damnable doctrine and positionthat powers excommunicated by the Pope or any authorityof the see of Rome may be deposed or murdered by theirsubjects or any whatsoever, and I declare that no foreignprince or person hath or ought to have any jurisdiction orauthority ecclesiastical or spiritual within this realm.' Thedeclaration against transubstantiation was still maintained.An act of 1701 added a third oath, known as the oath of'abjuration,' it is long and of a more political character: theswearer abjures all allegiance to the pretended Prince ofWales, and promises to maintain the royal succession as fixedby the Rill of Rights and the Act of Settlement, and thishe does upon the true faith of a Christian.The persons who were thus excluded were members of theRoman Church, persons who objected to oaths, and personswho were not Christians: Quakers we may say, and Jews. In1696 (7 and 8 Will. 111, c. 27) the oaths of allegiance andsupremacy were required of the electors as well as of theelected ; and the electors had also to take the oath of abjuration.In 1696 Quakers were permitted to make an affirmationinstead of taking an oath. On the accession of George I, theoaths were slightly altered. Catholics then could not sit ineither House until 1829, and properly speaking they could notvote in parliamentary elections, but the business of tenderingoaths to the voters had made elections so very long, that it

Constitutional History Remova Z of Disabilitieswas not gone through unless the candidates required it, andstatute (1794, 34 Geo. 111, c. 73) permitted this omission, soI daresay that Catholics did vote. The Catholic Relief Actof 1829 (10 Geo. IV, c. 7) substituted another oath whichCatholics could take-they had to swear allegiance, and alsothat the pope had no civil jurisdiction or authority within thisrealm, and that they would not subvert the church establishmentor exercise any privilege to weaken the Protestantreligion in this kingdom. The Catholics who would take thisoath were thus enabled to sit in either House, and vote atparliamentary elections : Catholics in holy orders were, however,expressly excluded from the Commons' House. In theprevious year, 1828, a great measure of relief had been givento all non-conformists, by what is generally called the repealof the Test and Corporation Acts (the Test Act was notwholly repealed), but this does not concern us, the Protestantdissenter had not been excluded from parliament nor fromvoting in parliamentary elections, but he had been excludedfrom many offices by a requirement that he should take thesacrament. This requirement, ever since 1727, had beenevaded by the passing of annual bills indemnifying thoseoffice-holders who had failed to take the sacrament. In 1828a declaration was substituted for the sacramental test, adeclaration to the effect that the declarant would not use hisprivileges to the injury of the established church. Thenecessity of making such declaration was removed in 1868(31 and 32 Vic., C. 72). But to return to parliamentary tests.All oaths to be exacted from an elector disappeared in1832 under the Reform Act, except an oath as to his identitythathe was the person named on the register. In 1858 (21and 22 Vic., c. 48) the old oaths of allegiance, supremacy andabjuration were swept away, and a new form devised, to theeffect that the swearer will bear true allegiance to the queen,and maintain the succession fixed by the Act of Settlement,and that he declares that no foreign power, prelate or potentatehas any jurisdiction or authority, ecclesiastical or spiritual,within the realm. The special oath for Roman Catholics, assettled in 1829, was still maintained. Another act of the sameyear, 1858 (21 and 22 Vic., C. 49), enabled either House todispense, in the case of a Jew presenting himself as a memberof that House, with the words ' in the true faith of a Christian.'This was a compromise: for some years past the House ofCommons had been sending up bills for the relief of Jews tothe House of Lords, which rejected them. The commonsadmitted Jews; the lords could exclude them. In 1866 theparliamentary oath was simplified (29 Vic., c. ~g), it becamean oath to be faithful to the queen, and to maintain the royalsuccession as fixed by the Act of Settlement ; there were nowords about the pope, and 'the true faith of a Christian'disappeared ; Catholics and Jews could take the oath requiredof other members. In 1868 the oath was once more simplified,it was cut down to this, 'I will be faithful and bear trueallegiance to Queen Victoria, her heirs and successors, accordingto law, so help me God.' What is more, failure to takethe oath does not vacate the seat, it subjects the member toa penalty of A500 every time he votes. The results, as workedout in Bradlaugh's cases, are lucidly explained by Anson1. In1888 (51 and 52 Vic., c. 46) an act was passed which enabledany person to substitute for an oath a solemn affirmation, if heobjects to being sworn, and states as the ground of suchobjection, either that he has no religious belief, or that thetaking of an oath is contrary to his religious belief.And now as regards office, the only common law disqualificationsseem to have been those of the sheriffs (who mightnot sit for their own shires) and the judges of the three commonlaw courts, and these have been swallowed up in statutorydisqualifications which comprise all returning officers, andalmost all persons who can be comprised in the term judges :this includes the judges of the High Court of Justice and theCourt of Appeal, the County Court judges, and the policemagistrates. A recorder may not sit for the town of whichhe is recorder ; a revising barrister may not sit for any placecomprised within his district. On the other hand, the unpaidmagistrates, the justices of the peace, are not excluded.Judges are not excluded from the House of Lords-veryfrequently the Lord Chief Justice is made a peer.Law a d Czdstom of the Corrsfztzrtiorz, Parliantelzt, 3rd ed. pp. 87-9.

Co~zstitutionnd HistoryAs regards other offices legislation has been very complicated.As showing the view taken by parliament at thebeginning of the last century, we may start with the broadprinciple laid down in the Act of Settlement, that no personwho has an office or place of profit under the crown shall becapable of serving as a member of the House of Commons.This rule was to come into force so soon as the HanoverianHouse should come to the throne. But before it could takeeffect it was repealed in 1705 by a Statute (4 Anne, c. 8)which in substance laid down the rule which was repeatedin 1707 by 6 Anne, c. 41, an act still in force, and thefoundation of all subsequent legislation. What it says is inshort this, that no person having any office or place of profitunder the crown, created since 25 Oct. 1705, shall be capableof being elected or sitting in the House of Commons; secondly,if any member shall accept any office of profit from the crown,his election shall be void, and a new writ shall issue as thoughhe were dead, provided, nevertheless, that he shall be capableof reelection. This then divided offices into new offices andold offices, the holding of a new office was to be utterlyincompatible with a seat in the House; not so an old office :a person accepting such an office is to vacate his seat, but becapable of reelection. Offices are ' new' or 'old,' according asthey were or were not created since the 25th Oct. 1705.I need hardly pause to point out how different would havebeen the history of parliament, had the clause in the Act ofSettlement become a permanent part of the law of the land.Our modern ministerial system would have been impossible,and the House of Lords, to which the king would have calledhis ministers, would have become far more important than theHouse of Commons. The act of Anne is the basis of muchintricate legislation. Parliament, in enabling the king tocreate a new office,-and owing to the appropriation ofsupplies,it has been very difficult for the king to create a new officewithout act of parliament-Parliament I say has generallyprovided in express words into which of three classes theoffice shall fall : (a) shall it be wholly incompatible with a seatin the House of Commons ? or (b) shall acceptance of it vacatea seat, but the holder be eligible for election? or (c) shall it notrender its holder ineligible, nor even make him vacate his seatif he has one? Out of these miscellaneous statutes one can geta rough general rule; but, of course, in every particular case onemust go to the statute book, must ask whether the office be newor old, and whether any express provision has been made aboutit. The rough general outcome is this, that the holders of thehigh offices of state can sit in the House, but acceptance ofsuch an office vacates the seat. On the other hand the holdersof subordinate offices in the civil service of the crown are ingeneral absolutely disqualified from sitting in the House. Ourpresent system demands that the heads of the great departments,those who collectively form the ministry, shall be inparliament and answer for the business of their departments.I say our system demands this; our law, of course, does notdemand it; there is no law to the effect that ministers mustbe in parliament, and sometimes for a short while a ministercannot find a seat, but the business of the nation could not becarried on in the wonted way unless almost all the ministerswere in parliament, and if they could not find seats, they wouldsoon have to resign their offices. On the other hand thesubordinate officers of the civil service are excluded by law,and the consequence is that we have a permanent civil service,a body of civil servants unidentified with any particular policywerethey in parliament they might easily fall out with theirsuperiors, and we should have the whole civil service changingwith the ministry. Such is the general outline. Military andnaval officers are not excluded from the House of Commons.As to pensioners and contractors it is needless to speak.As to the property qualification. We have seen that attimes during theMiddle Ages attempts were made to secure thatthe so-called knights of the shire should really be knights, or atleast notable esquires. This demand, however, seems to havebecome obsolete in the sixteenth century, and there was noproperty qualification during the seventeenth century. In 1696a bill for establishing a qualification of real property passedboth Houses ; at the Revolution the landowners had becomethe ruling class : but the king refused his consent to the bill.A more successful effort was made in 1710, when a statute(9 Anne, c. 5) was passed, establishing that a member must

have an estate in land, worth per annum for a county member£600, for a borough member £300. This remained law untilafter the Reform Act; but in 1838 (I and 2 Vic., c. 48) achange was made ; the qualifying income was still to be of theold amount, but it might be derived from personal as well asreal property. In 1858 (21 and 22 Vic., c. 26) the propertyqualification disappears altogether. The consequence is thata man may be qualified to sit in the House of Commons,though he is too poor to have a vote in a parliamentary election.(4) As regards the mode of electing members, the chiefpoint to notice is the passing of the Ballot Act in 1872 (35 and36 Vic., c. 33), down to which time elections were open. TheBallot Act was a temporary act passed for but eight years, but ithas since been kept alive by annual acts, and I suppose thatwe must regard it as having become in fact a permanent partof the constitution. The claims of the ballot had been pressedin parliament for some forty years before it was adopted.The registration system was, as already said, introducedby the first Reform Act. No one can vote whose name is noton the register, and in general (but this does not seem quitetrue) every one can vote whose name is on the register. Theregister is annually revised by barristers appointed for thepurpose by the judges, revising barristers who hear claims andobjections. In 1843 (6 and 7 Vic., c. 18) an appeal from thedecision of the revising barrister on points of law was allowedto the Court of Common Pleas. The appeal now lies to theHigh Court of Justice, and thence with its permission to theCourt of Appeal.(5) The power of determining a disputed election is adifferent matter. We have seen that in the days of James Ithe House of Commons claimed and won this power as one ofits privileges. In the eighteenth century it was shamefullymisused for party purposes. The question whether a memberwas duly returned or no became a question of confidence inthe government. In I770 the famous Grenville Act waspassed which committed this power to a committee of thirteenmembers, constituted by a process which was some slightsecurity for impartiality (10 Geo. 111, c. 16). Some furtherimprovements were made in 1839, but the House showed itselfvery unwilling to surrender what it regarded as a privilege.At last, however, in 1868, an act was passed (31 and 32 Vic.,c. 125) which made over the matter to the Court of CommonPleas. The jurisdiction is now exercised by the High Courtof Justice. There are several different grounds on which anelection return may be questioned. Thus it may be alleged thatthe majority of lawful votes was not in favour of the candidatereturned, and in that case it may be questioned whether someof the persons who actually voted were lawfully entitled tovote. As regards some matters the register will apparently beconclusive, as regards other matters it will not: thus a person'svote might be struck off on the ground that he was an infantor an alien, but not on the ground that he had no properqualification by property, occupation or residence1. Or againthe election may be disputed on the ground of bribery.The legislation against bribery and other corrupt practicesis now very complicated and minute, and is hardly a subjectfor elementary study. Bribery was a common law offence,and an election might be made void on the score of briberywithout any aid from statute law. Bribery became commonafter the Restoration. Legislation against it begins in 1696,but the parliaments of the last century were never in earnestagainst bribery, and were extremely jealous of any interferenceon the part of the courts of law with any mattersconnected with parliamentary elections. Something was donein 1762, and something more serious, after the lapse of eightyyears, in 1841. Our modern law is to be found chiefly inthree acts belonging respectively to 1854, 1863 and 1883-whether even the last is severe enough remains to be seen.The right to wages, four shillings per diem for the knightof the shire, two shillings fbr the burgess, has never beenexpressly abolished-it was still exacted in the seventeenthcentury-but we may well doubt whether the redistributionof seats has not tacitly abolished it.(6) A member of the House of Commons may cease tobe a member by death, by a resolution of the House declaringhim insane, by becoming an alien or a peer, by taking orders,Stepney Election Petition, 1866, 17 Q. B. D. 54.

372 Coastitutiona l History PERIODby conviction for corrupt practices or for certain other crimes(we have noticed these disqualifications), by remaining bankruptfor six months, by acceptance of office. A member hasno power to resign his seat. It is well known, however, thatthis rule is evaded ; the member who desires to resign isgranted the stewardship of the Chiltern Hundreds or someother nominal office under the crown, and this under the actof Anne vacates his seat. Possibly the office would be deniedhim if he sought it in order to escape expulsion.The House has an undoubted power of expelling a member,and the law does not attempt to define the cases in which itmay be used. If the House voted the expulsion of A.B. onthe ground that he was ugly, no court could give A.B. anyrelief. The House's own discretion is the only limit to thispower. Probably it would not be exercised now-a-days,unless the member was charged with crime or with somevery gross misbehaviour falling short of crime, and in generalthe House would wait until he had been tried and convictedby a court of law. In 1856 a member who had beenindicted for fraud and who had fled from the accusationwas expelled.During the seventeenth century, when the House expelleda member, it often declared him incapable of being re-elected.This of course was a considerably greater exercise of powerthan mere expulsion. In 1769 the House expelled JohnWilkes for a libel. He was immediately re-elected withouta contest: then the House resolved that having been expelledhe was incapable of sitting during the present parliament, anddeclared the re-election void. Again he was elected, and againthe election was declared void. As the passions of the Housecooled it came to the conclusion that it had acted illegally,and in 1782 the resolution of 1769 was expunged from thejournals as subversive of the rights of the whole body ofelectors of this kingdom. We may take it then as certainthat the House has no power to declare a man ineligible.Without being expelled a member may be suspended fromsitting in the House for a certain time; of late years thispower has been not infrequently exercised.The Triennial ActsIV. Frequency and Duration of ParZiame?zt.As regards the frequency of parliaments, there is still inforce one statutory enactment. There are altogether five actsto be remembered. First there are the two old acts ofEdward I11 (1330 and 1362) about annual parliaments.These were practically overridden, though not definitelyrepealed by the three later acts that I have to mention;and just lately they have been repealed as obsolete; theact of 1362 was repealed in 1863, the act of 1330 in 1881(44 and 45 Vic., c. 59). Then there is the act of 1641(16 Car. I, c. I), which provided that a parliament should beholden at least in every third year, even though not summonedby the king. This was repealed in 1664 by 16 Car. 11, c. I, ascontrary to the king's just rights, and instead thereof it wasenacted merely that the sitting and holding of parliamentsshall not be intermitted above three years at the most. Thisagain was repealed in 1887 by 50 and 51 Vic., c. 59, asunnecessary on account of the act of William and Mary,which I am about to name. The act of William and Mary(6 and 7 W. and M., c. 2, 1694), which settled the duration ofparliament at three years, provided also that a parliamentshall be holden once at least in every three years; and thisprovision is still in force, and is the only enactment touchingthe frequency of parliaments that is in force, if we except thevague words of the Bill of Rights, that parliaments ought tobe held frequently.As a matter of fact, however, we know that parliament sitsevery year. I think that a parliament has sat in every yearsince the Revolution. We know also why this is necessary-(I) the maintenance of a standing army is only legalized fora year at a time, (2) supply is only granted to the crownsufficient for one year's expenditure. In this case thereforepractical necessity lays down a rule more stringent than thatwhich stands upon the statute book.As to the duration of parliaments we must note a change.The first limit set to the power of the crown in this directionwas, if we neglect the act of the Long Parliament which

374 Co?zstitutionaZ HistoryPERIODrendered that assembly indissoluble without its own consent,the Triennial Act of 1694 (6 and 7 Will. 111, c. 2), which laiddown the rule that no parliament should endure for longerthan three years. The Septennial Act of I715 substitutedseven for three years. It has been noticed that this act is anexcellent illustration of the supremacy of parliament : a parliamentsummoned for three years by its own act declared thatit might sit for seven years-if for seven years why not forseventy? Various schemes for shortening the duration ofparliament have from time to time found favour-some haveIadvocated triennial, others annual parliaments-at the presentmoment we hear little of them1.The king without breaking the law can dissolve a parliamentwhenever he pleases. Any restraints that there are onthis power are not legal restraints. We are not likely to seeit abused. The king must have supplies, to get supplies hemust have a parliament, there can be no good in his dissolvinga parliament unless he believes that it does not fairly representthe wishes of the nation.In 1867 the continuance of parliament was made independentof the demise of the crown. If when the king dies aparliament is in existence it will continue in existence just asthough nothing had happened, but of dourse may be dissolvedby the new king (30 and 31 Vic., c. 102). The first step inthis direction was taken in 1696 (7 and 8 Will. 111, c. 15)-parliament was to endure for six months after the king's death,unless sooner dissolved by his successor.V. Privileges of Parliament.The privileges of the two Houses occupy a large space inour books of constitutional law and history. Their importancein the past has been great; their importance in the presentwe are apt, I think, to overrate. Let us briefly see whatthey come to; for a fuller account I can refer you toSir William Anson.1 The proposal to limit the duration of parliament to five years formed part ofthe scheme shadowed out by the Prime Minister on June a+ 1907, and wasembodied in the Parliament Act of xgr J.(I) Freedom of speech. Freedom of speech as againstthe crown was, we may say, secured at the Revolution ; sincethen there have been no legal proceedings by the crownagainst members for words uttered in the House. During thelast century, however, the king did occasionally as a matter offact take notice of opposition to his wishes, and make thingsunpleasant for the opponents by depriving them of offices.This it was difficult to prevent, the offices were held duringthe king's good pleasure, and he was not bound to give areason when he exercised the legal power of dismissal. Weare not very likely to hear of any repetition of such proceedingat the present day. At the present day it may bemore important to notice that this freedom of speech holdsgood not only against the crown, but against private individualsalso. A member speaking in either House is quite outside thelaw of slander. He may accuse any person of the basestcrimes, may do so knowing that his words are false, and yetthat person will have no action against him. Had he utteredthe words elsewhere he might have had to answer for them ina court of law, but for what he says in the House he cannot besued. In 1837 an attempt to extend this privilege from wordsuttered in the House to words printed by the authority of theHouse gave rise to the famous case of Stockdale v. Hansard,and to a violent collision between the Commons and the Courtof King's Bench. Messrs Hansard, by order of the House ofCommons, printed a report of the inspectors of prisons, whichcontained some defamatory words about Stockdale. He suedHansard: and he failed because the jury thought that thewords were true; but Hansard had in the first instance set up .the order of the House as a complete defence, and Denman, C. J.,and the other judges of the court, held that it was no defence :the order of the House of Commons would not justify anyonein publishing a libel. Stockdale brought another action ; theHouse of Commons took offence, resolved that there was abreach of privilege, and refused to let their printer put in anydefence but the order of the House; Stockdale obtained averdict for £600 damages, and the sheriffs of Middlesex leviedthat amount. Then the House committed the sheriffs to prison,as also Stockdale and his solicitor. The sheriffs obtained a

Coa~stitzttional Historywrit of habeas corpus before the King's Bench. The serjeantat-armswho had them in custody returned that they wereimprisoned under a warrant of the Speaker for a contempt ofthe House of Commons. Upon this the judges held that theyhad no power to set the prisoners free, and so the wretchedsheriffs remained in prison for doing what the court declaredwas their legal duty. Thereupon a bill was introduced tosettle this disputed privilege for the future ; and it passed intoan act which provides that no civil or criminal proceedingscan be taken in respect of any defamatory matter containedin any paper printed by the order of the House. This settledone point; as to the point raised by the committal of thesheriffs we must speak again.Of course the principle that a member speaking in theHouse may speak ill with impunity does not involve theprinciple that I, or anyone else, may safely report his speeches.However, it has been decided that the editor of a newspapermay publish fair and honest reports of what has been said inparliament and cannot be sued for this, though he reportsremarks which are untrue and defamatory. This was decidedin 1868 in Wuon v. Walter (L.R. 4, Q.B. 73), an actionbrought against the editor of the Tinzes for reporting somewords uttered by Lord Chelmsford in the House of Lordswhich accused the plaintiff of falsehood and malignity.We ought here to remember that during the whole of thelast century the Houses insisted that no one was entitled topublish reports of their proceedings, and committed to prisonthose who broke the rule. This perhaps we ought to regardas in its origin a measure of self-protection against the crown ;so long as the Houses had to dread the action of the crown,they did well to insist that their proceedings should be secret.To this day reports are made on sufferance and published onsufferance. The House at any time may order strangers towithdraw; the House may at any time resolve that its proceedingsshall not be reported, and commit to prison as for acontempt all those who report them. However, save in someextraordinary emergency, we are not likely now-a-days tofind either of the Houses desiring to hide its light undera bushel.v Freedom f~oln Arrest 377(2) Freedom from arrest is now no very important matter,because this immunity does not extend to imprisonment onthe charge of an indictable offence, and in 1869 imprisonmentfor debt was abolished. There are still some cases in whicha person may be imprisoned in the course of civil proceedings,as for not paying trust monies which he has been ordered topay by a court of justice, and in these cases a member ofparliament would enjoy a special immunity; but this is nogreat matter.In the case of members of the House of Commons thisprivilege is enjoyed during the session of parliament, and for40 days before and 40 days after. On the other hand apeer, as I understand, enjoys this immunity at all times.Sir William Anson1 seems to deny this, and to confine theprivilege 'within the usual times of privilege of parliament'(whatever that may mean), but certainly the old rule wasthat 'the person of a peer is for ever sacred and inviolable' (asBlackstone phrases it), and I know not how it has beenaltered ; further Irish and Scottish peers who have no seatsin the House of Lords enjoy this privilege: it is indeed rathera privilege of the peerage than a privilege of parliament.(3) The power of punishing for contempt. First as to theextent and nature of the punishment. The House of Lordshas, it seems, power to fine and to imprison, and it can imprisonfor a specified term which may endure beyond the durationof the session. Thus in 1850, two days before a prorogation,it committed two persons to prison for a fortnight. I do notthink that it has of late exercised its power of imposing afine, but we cannot deny that the power exists. On the otherhand it seems that the House of Commons cannot impose afine; it has not done so since 1666, and any imprisonmentthat it inflicts comes to an end with the end of the session.Of the power of expelling or suspending its own members wehave already spoken.In the second place, for what offences can the House inflictthis punishment of imprisonment? Our answer must be thatit is the power of the House to inflict it in a quite arbitraryLam a7rd Czrstom of the Conslitz6fio7z, Parlianrent, 31d ed. p. 226.

way. In the last century it was established by decisions ofthe law courts that if a prisoner committed by the Houseobtained a writ of habeas corpus, and the return to the writwas that he had been committed for a contempt of the House,the court would inquire no further but would remand theprisoner to his gaol. Some precedent for this doctrine wasto be found in the fact that the superior courts have longexercised a power of summarily committing persons for contempt,and a commitment made by one of them could not bequestioned in another; thus if the prisoner had been committedfor contempt by the Court of Common Pleas, it wouldhave been useless for him to obtain a writ of habeas corpusin the King's Bench: on its appearing that he had beencommitted by the Court of Common Pleas for contempt,the judges of the sister court would have refused to inquirewhether any contempt had actually been committed. Stillit will strike you that each House has by this means obtainedjust that power of arbitrary imprisonment, which was wrestedfrom the council of Charles I. This, however, was establishedby a series of decisions in the last century, and is not nowto be doubted. Possibly if the House in its warrant forcommitment stated the facts of the case a court of lawwould consider whether they constituted a contempt; but ifit says merely that A.B. is committed for contempt, A.B. willappeal to the law courts in vain. We have seen this in thecase of the sheriffs of Middlesex: they had to remain inprison, though in the view of the Court of King's Bench theyhad only done what it was their legal duty to do. Again aperson so committed would have no action against the officersof the House who arrested him.Thus it would seem that the House has a legal power toturn into a contempt just what it pleases, and the same maybe said of the superior courts of law. Still we may inquirehow this power has been actually exercised: and on thewhole it has of late been exercised temperately enough savein some moment of irritation, such as that which occurredwhen the House of Comn~ons was at issue with the Courtof King's Bench over the case of Stockdale v. Hatzsagd andcommitted the sheriffs of Middlesex.Sir Erskine May divides breaches of privilege into fourclasses: (I) disobedience to general orders or rules of eitherHouse, (2) disobedience to particular orders, (3) indignitiesoffered to the character of proceedings of parliament, (4)assaultsor insults upon members or reflections upon their character andconduct in parliament or interference with officers of the Housein discharge of their duties1. His instances of the first classconsist almost entirely of publications of debates at a timewhen this was forbidden by general rules of the House. Inthe second place we have the neglect of orders directingpersons to come and be examined before the House or beforea committee, and breaches of other similar orders. In thethird class we have libellous reflections on parliament. Thelast case that he gives is from 1819, when Mr Hobhouse wassent to prison by the House of Commons for 'a scandalouslibel containing matter calculated to inflame the people intoacts of violence against the legislature and against this Housein particular.' Then as to attacks on individual members :assaults on members on their way to or from the House havebeen punished, also libels on members. In the past thispower has been liberally used, but the more modern doctrineis that in order to be a contempt of the House the libel mustbe a libel on the member in his character of member: toaccuse a member of having taken a bribe for his vote, woulddoubtless be treated as a contempt; on the other hand if oneaccused a member of bigamy he would probably be left to usehis legal remedy, an action for slander or libel. Then toobstruct the officers of the House in the execution of theirduties, and again to tamper with witnesses who are to giveevidence before the House are treated as contempts.To a certain extent the House acts according to rules;precedents are collected and to some extent respected, buttoo often we see questions of privilege treated as partyquestions, and then the House, whatever it may think of itself,becomes truly contemptible. That it has a very dangerouspower in its hands is obvious.I do not think it convenient (though this is sometimesdone) to treat as matters of privilege the special functions ofCoizsfif1~tio1zal History afEzzglazzd, vol. 11, c. 7.

Co?zstitutionn Z Historythe two Houses, such e.g. as the special function of the Houseof Commons in relation to money bills or the special functionof the House of Lords as a court of law. These are theoutcome of rules of constitutional law, and stand on a differentfooting from the matters that we have been considering. Thesame may be said of the power of the House of Commons .-. todecide all matters relating to disputed elections, a power which, -.as we have seen, it has recently made over to the cour,ts of law.VI. The Work of Parliament.We have now to see what the work of parliament is.Doubtless its most important work is that of making statutes.But this is not all that it does. I leave out of sight for a timethe judicial power of the House of Lords as a court for the trialof peers, and as a court to which appeals can be brought fromthe lower courts ; also I leave out of sight the procedure by wayof impeachment-these matters are better treated in connexionwith the administration of justice. But we ought to noticethat the Houses of parliament do a great deal of importantwork without passing statutes or hearing causes In the firstplace they exercise a constant supervision of all governmentalaffairs. The ministers of the king are expected to be inparliament and to answer questions, and the House may beasked tc condemn their conduct. The legal power whichenables the Houses to insist that ministers shall answer whatare deemed to be proper questions is in the last resort thepower of withholding supplies, or of refusing to legalize theexistence of a standing army. Of course it is needless tohave recourse to these powers-their exercise would throwthe whole business of the country out of gear-still therethose powers are and a ministry could not long exist if it hadnot the confidence of the House of Commons or refused togive such information as the House thought itself entitled tohave. Then again by means of committees the Houses nowexercise what we may call an inquisitorial power. If anythingis going wrong in public affairs a committee may be appointedto investlgate the matter ; witnesses can be summoned to giveevidence on oath, and if they will not testify they can becommitted for contempt. All manner of subjects concerningStatutesthe public have of late been investigated by parliamentarycommissions; thus information is obtained which may beused as a basis for legislation or for the recommendation ofadministrative reforms.But the chief function of parliaments is to make statutes.We have observed the history of the legislative formula; fortwo centuries it has been accurately preserved, ' Be it enactedby the king's most excellent majesty by and with the adviceand consent of the lords, spiritual and temporal, and commonsin this present parliament assembled and by the authority ofthe same.' The essence of the statute seems to be the concurrenceof the king, the House of Lords and the House ofCommons. Each House we know has a well-settled order ofbusiness: thus it requires that every bill shall be read threetimes1. This procedure is in part defined by the standingorders which each House makes for itself, partly by tradition.In its main outlines this procedure is ancient; thus we cantrace the three readings to the end of the Middle Ages, but itis not a procedure imposed by law. Each House has a verylarge liberty of regulating its own procedure, and just atpresent we constantly see the House of Commons engaged inthis task. But not only has each House the power of makingrules for itself, we must add that a disregard of its rules willnot vitiate the statute. A court of law, we may safely say,would never go into the question whether an act has beenpassed in disregard of the usual formalities. The furthestthat it would go would be to insist that the whole act hadreceived the consent of king, lords, and commons; it wouldnever for example permit the question to be raised whether abill had been read three times-the rule which requires threereadings, ancient and punctually observed though it may be,is no rule of law. On the other hand the assent of the kingand the two Houses to the whole act in its ultimate form seemsessential. Some delicate questions might arise as to this incase the officials of the House made mistakes. Suppose a billcarried through the House of Commons; the lords makeamendments in it ; it ought then to go back to the commonsThis principle has been modified by the Parliament Act of 1911 (I and.I Geo. V, c 13) wh~ch provldes that under certain circumstances bills may becomestatutes w~thout the consent of the House of Lords. See Appendu.

Constitutional Historyin order that they may consider whether they will assent tothe bill thus amended. But suppose that this step is omitted;that the bill is then presented to the king and that he giveshis assent Is this bill a statute? I take it that it is not; butthe question how far a court of law would hold itself boundby a statement on the bill that it had received the assent ofking and both Houses, whether it would permit a litigant todispute this statement, is a somewhat difficult question. Suchmistakes have occurred more than once in the present reign.Thus in 1844 there were two Eastern Counties Railway billsin parliament; one had passed all its stages, the other wasstill pending in the House of Lords, when by mistake thequeen expressed her consent to the latter instead of to theformer. The mistake was discovered, and another act waspassed declaring that the bill to which assent had been givenshould not be deemed to have received the royal assent.Other mistakes of a similar kind have been similarly corrected.I may explain that a vellum copy preserved in the House ofLords is the ultimate evidence of a statute. Perhaps a courtof law would allow a litigant to prove that as a matter of factthis document had never received the consent of king, lordsand commons ; but I am not sure of this.For a long time past political theorists have insisted onthe distinction between legislation and the other functions ofgovernment, and of course the distinction is important thoughit is not always easy to draw the line with perfect accuracy.But it seems very necessary to notice that the power of a statuteis by no means confined within what a jurist or a politicalphilosopher would consider the domain of legislation. Avast number of statutes he would class rather as priz,ilegiathan as leges; the statute lays down no general rule, but dealsonly with a particular case. This is particularly noticeablein the last century. The Revolution had, once for all, put anend to the ordaining and dispensing powers of the king, andparliament sought to do the work itself by means of statutes.If we take up any volume of eighteenth century statuteswe find it very bulky. Apparently parliament got throughmuch more work then than it gets through in our own day.But on inspection we find that anything that in the strictestsense can be called legislation, any alteration of the generalGovernt~1e9ztzt by Statuterules of law, was much rarer then than it is in our own day,rarer than it was in the days of the three first Edwards. Itake up a list of the statutes of 1786. There are 160 so-calledpublic acts, and 60 so-called private acts. But listen to thetitles of a few of the public acts : an act for establishing aworkhouse at Havering, an act to enable the king to licensea playhouse at Margate, an act for erecting a house of correctionin Middlesex, an act for incorporating the ClydeMarine Society, an act for paving the town of Cheltenham,an act for widening the roads in the borough of Bodmin.Fully half of the public acts are of this petty local character.Then as to the private acts, these deal with particular persons:an act for naturalizing Andreas Emmerich, an act for enablingCornelius Salvidge to take the surname of Tutton, an act forrectifying mistakes in the marriage settlement of Lord andLady Carnelbrd, an act to enable the guardians of WilliamFrye to grant leases, an act to dissolve the marriage betweenJonathan Twiss and Francis Dorrill. Then there are almostcountless acts for enclosing this, that and the other common.One is inclined to call the last century the century of frivi-Legin. It seems afraid to rise to the dignity of a generalproposition ; it will not say, 'All commons may be enclosedaccording to these general rules,' 'All aliens may becomenaturalized if they fulfil these or those conditions,' 'Allboroughs shall have these powers for widening their roads,''All marriages may be dissolved if the wife's adultery beproved.' No, it deals with this common and that marriage.We may attribute this to jealousy of the crown : to haveerected boards of commissioners empowered to sanction theenclosire of commons or the widening of roads, to have enableda Secretary of State to naturalize aliens, would havebeen to increase the influence and patronage of the crown,and considering the events of the seventeenth century, it wasbut natural that parliament should look with suspicion onanything that tended in that direction.As time has gone on parliament has become much lesssuspicious of the crown, because 'the crown' has come tomean a very different thing from what it meant in the lastcentury. The change is a gradual one, but I think we may

384 Co?~stitutio~znZ HistoryPERIODsay that it becomes very apparent soon after the ReformAct of 1832. Parliament begins to legislate with remarkablevigour, to overhaul the whole law of the country-criminal law,property law, the law of procedure, every department of thelaw-but about the same time it gives up the attempt togovern the country, to say what commons shall be enclosed,what roads shall be widened, what boroughs shall have paidconstables and so forth. It begins to lay down general rulesabout these matters and to entrust their working partly toofficials, to secretaries of state, to boards of commissioners,who for this purpose are endowed with new statutory powers,partly to the law courts. I will give a few examples of whatI mean. In the last century the administration of the poorlaw was altogether a local affair entrusted to the parochialoverseers of the poor and the county justices. By the greatPoor Law Reform Act of 1834 certain poor law commissionerswere given very large statutory powers of regulatingthis matter for the whole kingdom. Later statutes gave themever greater powers. In 1871 these commissioners gave placeto the Local Government Board, which exercises very greatpowers over local affairs. A vast number of things that in thelast centuiy could only have been done for the parish of LittlePeddlington by a statute can now be done without statuteunder an order, or with the sanction of the Local GovernmentBoard. Then again in the last century, if an alien wished tobecome naturalized he had to go to parliament for a statute.In 1844 a general statute was passed giving power to theHome Secretary to grant certificates of naturalization : thusrecourse to parliament was rendered unnecessary. Then againin the last century there was no court which had power todissolve a marriage. The ecclesiastical courts could pronouncea divorce, a mensa et thoyo, could decree, that is to say, thatthe husband and wife need not live together, but in order todissolve their union and set them free to marry again, recourseto parliament was necessary, and acts dissolving the marriagebetween X and Y were by no means uncommon. In 1857however a new Court for Divorce and Matrimonial Causeswas created, and was empowered to dissolve marriages whenevercertain facts should be proved.v Legislation and Govern+zze?zt 385These are but a few examples of a general tendency whichhas been at work for the last fifty years, a tendency we maysay on the part of parliament to confine itself to the work oflegislation, of framing general rules of law, and to entrust thepower of dealing with particular cases to the king's ministers,to boards of commissioners, to courts of law. Still parliamenthas not renounced and, according to our accepted theory ofsovereignty, could not renounce the power of dealing withparticulars, and in certain cases it still habitually exercisesthat power. The most important instance of this is to be foundin the appropriation of supplies. When a supply of moneyis granted to the king, parliament proceeds to appropriatethat supply with great minuteness, to say, that is, how muchof it may be spent for this purpose, how much for that. Thusin 1886 it appropriated ~2,902,900 for the payment of seamenand marines, £964,400 for their victuals and clothing, £1 1,477for the maintenance of the British Museum and the NaturalHistory Museum, £2,1m,ooo for public education, £r,ooo asa gratuity for the widow of a certain distinguished publicservant. Now an act saying to the queen, 'You may spend£~,ooo in giving a gratuity to Lady A' is certainly not inthe jurist's sense a law, it is no general rule, but this minuteappropriation of supplies is a most important part of the workof every session, and it is effected by statute ; the same formulais used as though a general law were being made : it is enacted"by the king's majesty with the advice and consent" etc.Nor must you suppose that this instance, though it is the mostimportant, stands alone. To take another very common case :a railway company wants the power to compel landowners tosell the land necessary for the construction of its line ; it mustgo to parliament for a statute. There is no general statutewhich empo\vers such companies to force the sale of land, butparliament in each case authorizes this particular company tocompel the sale of those particular lands. Parliament haskept this matter in its own hands. Again it is not very oftennow-a-days that private persons succeed in obtaining or desireto obtain special acts of parliament dealing with their particularcases: formerly the tenant of a settled estate usedsometimes to desire to sell the estate, and this he could not

386 Co~zstitutio~zn Z HistoryPERIODdo without the aid of a statute ; recent legislation as to settledestates has made it much easier to deal with settled estates,and private estates acts have become very unusual ; still theyare sometimes wanted, and are sometimes passed.The power of a statute to descend to particulars receivesits most striking and terrible illustration in an act of painsand penalties, an act inflicting punishment upon some particularperson for some particular act. We have before thisspoken of acts of attainder1. The last instance, I believe, ofcapital punishment being thus inflicted was that of Sir JohnFenwick, who was executed in 1697. He, no doubt, wasguilty of high treason in taking part in the plot to assassinateWilliam 111, but it was impossible to get two witnesses againsthim, and as you remember two witnesses are necessary incase of high treason. So instead of being tried in a courtof law, he was attainted by act of parliament. Since thenthere have been other acts inflicting punishment, but neverI think the punishment of death; thus Atterbury was banishedin I 720. Now-a-days such acts would be very properly condemned,but even within quite recent times individuals havebeen disfranchised by act of parliament on account of bribery.In 1876 certain voters for the City of Norwich were thusdisfranchised.An act then can punish; so also it can absolve from punishment.Acts of indemnity are occasionally passed freeing thisor that person from the penal consequences of what they havealready done. Thus a year or two ago it was discovered thatcertain lords had sat in the Upper House without taking theoaths, and had thereby incurred very heavy money penalties.Acts were passed absolving them from the consequences oftheir inadvertence2. A curious little act of 1887 has just metmy eye. The Duke of Connaught was Commander-in-chiefof the Presidency of Bombay. Under a statute of 1793, ifany Commander-in-chief in India comes home to Europe,he thereby resigns his office. The duke wished to be presentat the Queen's Jubilee. An act of parliament was passed1 bee above, pp. zr5-16, 319-20.2 43 and 44 Vict. Pr~vate Acts.vThe Crow8 a d the Govevnme?zt387enabling him to do this without forfeiting his command'. Astatute about so trivial a matter is, I think, a good illustrationof the supremacy of parliament. If it can do the greatestthings, it can do the least also; if it can make general lawsfor a vast empire, it can make a particular exception out ofthem in favour of a particular individual. The one thing thatit cannot do is to prevent its own repeal.To what extent parliament actually and habitually exercisesthis vast power-what can be done without an act ofparliament, for what purposes an act is necessary-these arequestions which can only be fully answered by stating thewhole law of England. For iastance, can a company lay atramway through the streers of Cambridge without obtainingan act of parliament, and if so, can it use steam engines todraw its carriages ? To answer such questions, one must lookto the statute book and see what parliament has said abouttramways. Generalizations, we shall find, are dangerousthings ; we cannot describe in wide terms the sort of actswhich parliament passes ; we must read, and read patiently,the acts that it has passed.B. The ' Crown' aad ' The Governmeizt.'We know however as a matter of fact that a great dealof the utmost importance is done towards governing thekingdom that is not done by parliament; indeed in commontalk we constantly make a contrast between parliament onthe one hand, and what we call the government on the other.What then is this government ? The answer to this question,if it is to be true, must be both long and difficult. The reasonis this. During the last two centuries there has grown up anorganization which is not a legal organization. Of course, Ido not mean that it is an illegal organization ; rather I shouldprefer to say that it is an extra-legal organization ; the lawdoes not condemn it, but it does not recognize it-knowsnothing about it. I mean the organization to which we pointwhen we use such terms as ' the Cabinet,' ' the Ministry,' ' theGovernment,' ' the Prime Minister,' ' Mr Gladstone's secondDohe of Connaught's Leave Act, 1887, 50 Vlct. c. 10.

388 Constitzstioan l History PERIODMinistry,' ' Lord Salisbury's administration.' This certainly isa most curious state of things, that the law should not recognizewhat we are apt to consider an organ of the state secondonly in importance to the parliament. The only explanationthat can be given is a historical explanation. We must goback to William 111's time.We may start with this. William I11 as king of Englandhad very great powers. The revolutionary settlement, in particularthe Bill of Rights, set certain limits to those powers.The king was to be distinctly below statute ; he was to haveno power to suspend statutes or to dispense with statutes;he could not by his prociamations create any new offence ; hecould not keep a standing army in the realm in time of peacewithout consent of parliament ; parliament had begun to appropriatesupplies ; the military tenures were gone ; he hadno powers of purveyance and preemption ; he could not trymen by martial law; the judges were no longer to hold officeduring his good pleasure ; the courts of politicians wherebythe Tudors and two first Stuarts had enforced their will weregone; there was no Star Chamber, no High Commission.Still the king's legal powers were great: it was a goodlyheritage that was settled on King William. Indeed, as wehave seen, there was a plausible case for holding that theRevolution was a restoration, a restoration of the ancient constitutionas it stood in the days of the Lancastrian kings. Allthe old prerogatives existed save in so far as they had beenexpressly abolished by statute, and they were wide, and itwas intended that William should exercise them. It was nohonorary president of a republic that the nation wanted, buta real working, governing king-a king with a policy-andsuch a king the nation got.Then the king has a council, a privy council; from aremote time this has been so ; we can trace back the historyof this council at least as far as the beginning of Henry 111'sreign. It has already four or five centuries of definite historyand is very well known to the law. Before this I have triedto point out, however, that the const~tution and the functionsof the council have always depended to a great degree on thewill of the king. The councillors are councillors only duringThe Privy Cou~zciZthe king's pleasure. Only during minorities or during briefrevolutionary periods has parliament determined who shall becouncillors. And again no law compels the king to take oreven to ask the advice of his councillors. Great as are thepowers that the council exercises under the Tudors and theStuarts they are in law, at least generally, the king's powers,the royal prerogatives-powers which the king might lawfullyexercise himself were he capable of discharging personallythe vast business of government. A privy councillor as such,though the law knows him, has hardly any legal powers.We notice also that the act which abolished the StarChamber weakened the council; not merely did it deprivethe council of almost all its judicial powers, but by so doingit rendered regular meetings of the council less necessaryto the king. Charles I1 has a council whom it is needless tokeep together in permanent session ; there is now no judicialwork for it to do ; while as to the work of advising the kingupon the exercise of his prerogatives, no law compels theking to seek th'e advice of all his councillors1. As a matterof fact Charles does not seek their advice on all occasiotis:he has business on hand which can be trusted to very few,and he trusts very few. Something like an inner circle ofadvisers is formed consisting of a few privy councillors whohold some of the highest offices in the state. Men speakof it as the Cabal ; it so happens that the initial letters ofthe names of its members make this word : Clifford, Ashley,Buckingham, Arlington and Lauderdale The privy councilis at this time a large body, consisting of some fifty memberstoolarge a body for united action. Sir William Temple evolveda plan for reforming the council and restoring it to the positionthat it had formerly held, that is to say, the position of a bodywhom the king does really consult; but the plan broke down.Under William it became obvious that there was a circle of realcouncillors within the wider circle of nominal co~~ncillors, andthis inner circle gradually acquired the name of the CabinetCouncil-the council held in the king's own cabinet. Thiswas looked on with considerable suspicion by the parliamen-See E. I. Carlyle, " Comrn~ttees of Council under the Earl~er Stuarts,"b?zg/zsh HZS/O?IM~ l

Cotzstitutiomz Z Historytarians of the time, and one more attempt was made to restorethe privy council to its lost position. When in 1700 it becamenecessary to settle the crown on the House of Hanover,it was enacted by the Act of Settlement, that so soon as thathouse should succeed to the throne 'all matters and thingsrelating to the well-governing of this kingdom which areproperly cognizable in the privy council by the laws andcustoms of this realm shall be transacted there, and allresolutions taken thereupon shall be signed by such of theprivy council as shall advise and consent to the same.' Itwas feared that a Hanoverian prince would be in the handsof foreign favourites, and it was desired that everyone whogave the king counsel should do so under his hand, so thathis responsibility for the advice might be brought home tohim. What would have been the effect of this clause hadit ever taken effect, it is hard to say; for it seems to sayno more than that things which by law ought to come beforethe council ought to come before the council. My impressionis that whatever ancient usage may have required, law didnot require the king to consult his privy council about theexercise of his prerogatives. And this became apparent afterwards.However the clause in question never came into force.It was repealed in I705 before the House of Hanover cameto the throne. That it would not work had, I suppose,become apparent. During Anne's reign men became moreand more familiarized with the existence of a cabinet, andthe abandonment of the attempt to exclude placemen fromthe House of Commons made possible our modern systemof government.A great deal however remained to be done before thatsystem would assume the shape which is familiar to us ; butbefore we trace the process any further we must turn back toconsider the position of those whom I will call the high officersof state. All along there have been such officers. It would,I think, be interesting could we take the history of eachoffice: for this, of course, we have not time; still a fewthings should be remembered. In very ancient times thechief officers of the king are the officers of his household : hissteward, his butler, his chamberlain, his marshal or the like.The Great O$ices of StateTheir activity spreads outwards from the household over thekingdom, and the greatest men of the kingdom are proud tohold offices which in their origin we may call menial. Inthe German Empire the Count Palatine of the Rhine wassteward, the Duke of Saxony was marshal, the King ofBohemia cup-bearer, the Margrave of Brandenburg chamberlain.Soon after the Norman Conquest we see similar highofficers in England, and their offices are hereditary. Thehigh stewardship is hereditary in the House of Leicester, theoffice of constable in the descendants of Miles of Hereford,and that of chamberlain in the family of Vere and the butlershipin that of Albinil. But in England owing to the strengthof the Norman kingship, we may state as a general rule thatan office which becomes hereditary becomes politically unimportant:it becomes an office of show and ceremony. Twoof the most ancient offices still exist : the Earl of Norfolk isMarshal of England, the office of Lord Great Chamberlainis held jointly by Lady Willoughby dlEresby and LordCarrington. The offices of Lord High Steward and LordHigh Constable fell into the king on the accession of theHouse of Lancaster. Since that time these offices have notbeen granted out as hereditary offices. They are, I believe,granted for the purpose of coronations and similar pageants,and when a peer is to be tried by his peers a high stewardmust be appointed for the occasion-a fact that may remindus that the king's steward would very naturally have beenthe president of the king's court just as the lord's stewardpresided in the court of the manor. These great offices ofthe first rank, however, have long been so purely honorarythat we find a reduplication of offices; even the householdwork which would naturally be done by these officers is doneby another set of officers. Thus besides the hereditary LordGreat Chamberlain who does nothing and is paid nothing,there is a Lord High Chamberlain, who has duties in theking's household and is paid a salary. Beside the hereditaryEarl-Marshal, there is a non-hereditary Master of the Horse,So again there is a Lor2 Steward of the Household whoseoffice is not hereditary, and who receives a salary.Stubbs' Cottstitutional Histoy, vol. I, § I 19.

Co;lzstitzttionnZ HistoryBut it is not these officers of the oldest and highest rankwho acquire governmental functions. Another group of officialscollects round the Norman king, and their offices are nothereditary. Foremost among them is the justiciar, capitalisjzbstitiarius AtzgZiae. His office comes to an end before thedeath of Henry 111, and its extinction leaves as the twochief officers of the realm the Lord Chancellor and the LordHigh Treasurer. Throughout the later Middle Ages, theChancellor and Treasurer are the king's right-hand men.Other offices grow up. Under the Tudors a Lord President ofthe Council is sometimes appointed, and under the Stuarts thisoffice becomes more permanent. Then, as we have alreadyseen, confidential clerks begin to intervene between the kingand his chancellor. There is the Lord Keeper of the PrivySeal, who already in Henry VIII's reign ranks next tothe Chancellor, Treasurer, and Lord President. Then theking's secretary intervenes between the king and his privyseal, and in 1601 he becomes 'our principal secretary ofestate.' The growth of the Court of Chancery has an importantinfluence on the distribution of offices; the Chancellorwith his increasing burden of judicial duties cannot be alwaysat the king's side. Sometimes there are two Secretaries ofState (Henry VIII appoints a second in 1539)~ sometimeseven three; under Charles I it becomes the regular rule tohave two, until 1708, when, on the occasion of the union withScotland, the number was increased to three. There are now,as we shall see hereafter, five. On a somewhat lower levelstood the Chancellor of the Exchequer, also the Lord HighAdmiral.Occasionally we find that some of these offices are putinto commission; thus instead of a Lord Chancellor, thegreat seal is entrusted to commissioners. At the beginningof George 1's reign the office of Lord High Treasurer wasput into commission, and it has remained in commission eversince. It is executed by certain persons who are collectivelyLords Cornmissioners for executing the office of the Lord HighTreasurer, or as they are generally called the Lords of theTreasury; the one who is first named in the patent of appointmentis the First Lord of the Treasury. So also or, thev Doctrilze of the Seals 393accession of William 111, the office of Lord High Admiral!"as put in commission ; it was revived for a short while inAnne's reign. Her husband, George of Denmark, was LordHigh Admiral. It was revived again for a few months in I 827,when the Duke of Clarence became Lord High Admiral. Butexcept during these intervals it has been in commission, executedby Lords Commissioners for executing the office of LordHigh Admiral, that is to say, by a First Lord of the Admiraltyand several other lords. Now these servants of the king, moreespecially the older of them, were known to the law, to thecommon law. They had legal powers. The king could nothave got on without them. For instance, the Chancellor hadbecome a judge ; with the assistance of a Master of the Rollsand certain Masters in Chancery he had to discharge the everincreasing business of a great court. Take another and moreimportant instance: in Elizabeth's reign the judges had toconsider whether a certain sum of money had been lawfullyissued out of the king's exchequer; they laid down two propositions: (I) that no money could be laivfully issued withoutthe king's own warrant; (2) that such a warrant would not besufficient, it must be sealed with the great seal or with theprivy seal ; the king's command by word of mouth is notenough, the king's command signed by his own hand andcountersigned by his secretary is not enough-the great, orat least the privy, seal must be attached. And so in othercases, the courts would take no notice of the king's commandunless formally sealed. A mass of laws grew up about thismatter; for some purposes the great seal was indispensable,for others the privy seal would do, for others again the signetkept by the secretary: in a few cases the king's oral commandwould be enough-thus undoubtedly he could dissolve parliamentby word of mouth. This doctrine of the seals practicallycompelled the king to have ministers entrusted with the sealswho could be called in question for the use that they made ofthem. We must not think, even now-a-days, of 'the sealsof office' as mere ceremonial symbols like the crown and thesceptre; they are real instruments of government. Withouta great seal, England could not be governed. Every corporation,this University for instance, has as perhaps you know a

Cozstitutiomz Z Historycommon seal, and a great many things can only be doneby the use of the common seal. It is somewhat the samewith the seals of office: courts of law take notice of theseseals, and insist that they must be affixed.We return now to the growth of the Cabinet. The innercircle of councillors which grows up within the Privy Councilconsists of a few holders of these high offices. With their aid,the king can exercise all the powers with which the law entrustshim. They keep the various seals of office, and if they will affixthem, then the king's business can be done. Certain things,it is true, must according to settled usage be done by Orderin Council, that is, by an order made by the king at a meetingof the Privy Council. Thus from a remote time it has beenthe practice that the summoning of a parliament shall bedetermined on at a council. The writs of sumlnons recitethat by the advice of his Privy Council, the king has determinedto call a parliament. Settled usage, I say, requiresthis-it might be too much to say that it is required by lawbutat any rate, law does not require that all the membersof the council shall be summoned to a meeting. A meetingof the king with just a few of its members selected by himis a meeting of the Privy Council, and a resolution passed atsuch a meeting and published is an Order in Council.We now see how it is legally possible for the work ofgovernment to fall into the hands of a small number of thecouncil-those members who hold the high offices of stateand who have control over the seals of office. If the kinghas with him the Chancellor, the Treasurer or First Lordof the Treasury, the Lord Privy Seal, and the Secretaries ofState, he can get his work done without consulting the massof privy councillors. If, for any purpose, an Order in Councilis required, a meeting of the king with just these few intimateadvisers will be a good enough meeting of the Privy Councilat which Orders in Council can be made. So much as to thelegal possibility of cabinet government.Still cabinet government, in our modern sense, is butslowly perfected ; our idea of it involves several principleswhich were by no means acknowledged principles in the daysof William 111, which hardly obtained complete recognitionDeveZo)me~zt of the Cnbi~zetuntil late in the last century. In the first place there hasbeen a further change in the mode of conducting business.William and Anne were habitually present at the meetingsof the Cabinet Councils, which also, as we have just seen, werelegally meetings of the Privy Council. But then there comesa change. George I ceased to attend the meetings of theCabinet. He and George I1 could not speak English, andfelt little concern as to the internal policy of England ; theywere more concerned for Hanover. The Cabinet then beginsto meet without the king's presence. The results of its discussionsare, when this is necessary, conveyed to the kingby one of the ministers. If an Order in Council is wanted,then a few ministers are got together, and what is formallyand legally a meeting of the Privy Council is held underthe king's presidency. But the business of such a meetingbecomes merely formal; it is held in order that it may registera foregone conclusion, a conclusion debated in the Cabinetand communicated to the king. George 111, though he hada will of his own and strong views of policy, did not interferewith this arrangement At the deliberative meetings ofthe Cabinet Council the king was not present; the formalmeetings of the Privy Council at which he was present werenot meetings for debate or discussion, but merely meetings atwhich the king would give his formal assent and authorityto matters which had been already before the Cabinet andabout which the king's pleasure had been already taken.Then again we must notice the growing solidarity of theCabinet. This solidarity (I can find no better word for it)we may analyze into three principles : (I) political unanimity,(2) common responsibility to parliament, (3) submission to acommon head.(I) Only by degrees does it come to be considered thatthe king ought to choose all his ministers from one of the twogreat parties. The ministries of Anne's reign are partly Whig,partly Tory. The Whig administration of Sir Robert Walpolesets the precedent for party ministries and thenceforward,though there are occasional aberrations, the bonds of party aredrawn tighter. Of course there may be coalition ministries,but then a coalition ministry has a policy of its own, thoughit does not happen to be the policy of either of the two great

396 Constitutio~zad History PERIODpermanent parties, the existence of which we have come toregard as natural.(2) Connected with this is the principle of common responsibilityto parliament, by which is meant that the ministry,if defeated, will resign in a body. This principle was notfully admitted until the last century was far advanced. Wemay find one minister resigning because he cannot get onwith parliament, while his colleagues retain office; quarrellingwith him is not quarrelling with them, nor are they in honourbound to support his cause. We must remember in this contextthat the presence of ministers in the House of Commonswas long disliked by the House. So far from wishing to haveministers there to answer for their doings, the House struggledto exclude them. But the ideal changed ; the House wished tohave the ministers before it-became accustomed to have thembefore it-to support them, to attack them, to regard them asa whole, to regard them not merely as the representatives ofthe king, but also as the representatives of a party, so that adefeat of a minister would be a defeat of a party,(3) Such organization of a ministry almost of necessityinvolves some degree of subordination and very slowly itbecomes acknowledged, not by law, but by parliamentarypractice that there is among the ministers a Prime Minister,one who has a certain amount of authority over his fellows,one who, to a certain extent, stands between them and theking. But this is the gradual outcome of practice. Walpole,for example, though, as a matter of fact, he had great authorityover his colleagues, protested against being calledPrime Minister, and to this day the law knows no suchperson1. Lord Salisbury, we say, is Foreign Secretary andPrime Minister; to the law he is merely one of H.M.principal Secretaries of State, and whatever power he mayhave over his colleagues is not legal power-he has no morelegal power to give them orders than they have to give himorders ; he has no more power to dismiss them than theyhave to dismiss him. Still, before the end of the last centuryconstitutional practice required that there should be a Prime1 The Prime Minister was granted precedence next after the Archbishop ofCanterbury by royal warrant dated Dec. 4, 1905, and appearing in the Z~ndonGaecftc of Dec. 5. The warrant does not constitute an office, but grants precedenceto the person holding a particular pos~tion.v Power of the Crown 397Minister, and in the present century his ascendency has becomestill more marked.Then again, we have to notice the growth of the principles,which of course are no principles of law: (I) that the king isbound (at least in all grave matters) to act on the advice ofhis ministers, (2) that he must choose his ministers, or ratherhis first minister, in accordance with the will of the Houseof Commons. We cannot trace step by step the processwhereby the king's personal will and pleasure has come tocount for very little in our government. The reigns of thetwo Hanoverians, George I and George 11, had much to dowith it. George 111's attempt to govern as well as to reignwas, we may now say, a retrograde attempt; it is improbablethat we shall see such an attempt in the future. The processof which we are speaking is a very gradual process, and it isvery difficult to say with any accuracy how far it has gone.Few indeed are the people who really know how muchor how little the queen's own wishes affect the course ofgovernment. I strongly suspect that her influence is ratherunderrated than overrated by the popular mind. Persons ingeneral do not know how vast a mass of business is broughtbefore her, how many papers she has to sign with her ownhand. Still there is no doubt that it is expected of herthat in all grave matters she should accept the advice ofher ministers. It much rather concerns us as legal studentsto see how this non-legal rule is intimately connected withlegal arrangements. Without parliament's consent, given yearby year, no standing army can be kept on foot. Without thegrant of supplies the king will have no money, or at any ratenot enough money to enable him to carry on the work ofgovernment. Thus parliament, and in particular the House ofCommons, has a most efficient check upon the king's action.An attempt to keep in office ministers who could not commanda majority in the House of Commons would speedilyfail: the House could refuse to renew the Army Act, orrefuse to grant supplies. An attempt to overrule ministerswho commanded such a majority might be met in a similarfashion. The most important choice that a king can haveto make is now the choice of a Prime Minister; the other

398 Co~zstitzctiona Z HistoryPERIODministers are practically chosen for him by the Prime Minister,and even here he seldom has much choice. It is even laiddown as constitutional practice that when a ministry resigns,the king ought to offer the premiership to the person namedby the outgoing minister.We here find ourselves among rules which most clearlyare not rules of law ; we may call them rules of constitutionalmorality, or the customs or the conventions of the constitution.We find them of every degree of stringency and ofdefiniteness: on the one hand there are rules so stringentand so definite that they practically operate as rules of law;on the other hand there are rules which have hardly yetobtained general recognition, and the very existence of whichis disputable. For instance, we may now take it as a wellsettledunderstanding that when a bill has passed both Housesof parliament, the king will not withhold his assent. Thelast occasion on which such assent was withheld occurred solong ago as Queen Anne's reign, when she rejected a ScottishMilitia Bill. We now expect the royal assent as though it werea mere matter of course, and (to say the least) the circumstanceswould have to be of a very extraordinary characterwhich would allow the king to withhold his royal assentwithout a breach of a well-settled constitutional understanding.On the other hand, we seem to see a rule growingup to the effect that the House of Lords ought not persistentlyto resist the will of the House of Commons aboutmatters of first-rate importance. At present this rule, ifrule we may call it, is of a very vague character; we haveto use in expressing it such elastic terms as 'persistently' and'matters of first-rate importance,' and our view as to theexistence of the rule is likely to be affected by our politicalopinions : if we be Tories we shall perhaps deny it, if Radicalswe shall affirm it : if we try to be impartial we shall have tosay something very loose: as, for instance, that this rule hasbeen observed more or less for some time past and seemsto be growing stricter. An instance of a more definite rule,which yet is no rule of law, is that the lords are not to makechanges in a money bill, but must accept it as a whole orreject it as a whole. As an illustration of a very debateablevPersonal WiZZ n~zd Legal Powers 399matter, we may take the power of the House of Commonsto make use of this rule as to money bills for the purposeof forcing other measures through the Upper House. Is itunconstitutional for the commons to, as the phrase goes, tacka bill granting money to the crown to another bill to whichthe lords object, and thus to put the lords in the dilemmaof having either to pass the obnoxious bill or to leave thecrown without money? There are a few instances of thishaving been done, and more of its having been threatened;I do not think that it has actually been done sinceWilliam 111's reign. The lords contend that such a proceedingis unconstitutional-the commons might take adifferent view. There is no impartial tribunal before whichsuch questions can be brought, no tribunal which even pretendsto be impartial. In each particular case there is likelyto be a brisk party conflict, but slowly understandings areestablished. And thus it is as to the personal wishes andopinions of the king: they have come to count for little, butfor how much few of us can say.But we must not confuse the truth that the king's personalwill has come to count for less and less with the falsehood(for falsehood it would be) that his legal powers have beendiminishing. On the contrary, of late years they haveenormously grown.The principle being established that the king must governby the advice of ministers who are approved by the Houseof Commons, parliament has entrusted the king with vastpowers-statutory powers. Many governmental acts, whichin the last century would have required the passing of anact of parliament, are now performed by exercise of statutorypowers conferred on the king. Acts which give thesepowers often require that they shall be exercised by order incouncil. Thus in addition to his prerogative or common lawpowers the king now has statutory powers. All this, coupledwith the delegation of other powers to this minister and that,is the result of a new movement which began about 1830.These brief remarks about history are intended as anintroduction to an examination of the present state ofaffairs. We have to enquire how what we may loosely call

400 Constitutional History PERIODthe government is organized, and we must carefully distinguishbetween rules of law and rules which, however bindingthey may be considered, are not rules of law and could notbe enforced by any legal proceedings.We have to begin with describing the present constitutionof the Privy Council, the Cabinet, the Ministry.(I) The Queen has a Privy Council and in some sort isobliged by law to have one, not indeed quite directly, but thelegal pressure amounts to necessity, for many things whichmust be done (if government is to go on at all) can only bedone by the Queen in Council. This is the result (for themost part) of statutes passed within the last fifty years, amass of statute law growing rapidly year by year. Onestatute we may specially note:The Act of Union with Scotland provides that there shallbe but one Privy Council for Great Britain.(2) The legal composition of the Council is as follows.No number is fixed; no legal quorum is demanded; the Queenof her own will can make any man (not an alien) a privycouncillor. Summons and oath make the privy councillorinsubstance he swears to advise the king to the best of hisdiscretion. From the form of oath, which is very ancient,little is to be learned. The privy councillor swears to keepthe king's counsel secret, to avoid corruption, to do all that agood counsellor should do. He is dismissible at pleasure,without cause assigned.(3) In actual composition the body consists of sometwo hundred and fifty members-about half peers and halfcommoners.It contains all present and past cabinet ministers, a fewmembers of the royal family, two Archbishops and the Bishopof London, a number of the highest judges and ex-judges,and a number of persons selected on grounds of military,political, scientific, literary and even philanthropical services.Certain offices carry with them a const~tutional claim to aseat in the privy council : a cabinet minister is always calledto the council board, also the lord chief justice, the lordjustices (a relic of former tlme), the Archbishops and theBishop of London. De facto councillors are not dismissed;v The Privy Council 401indeed it probably would not be considered constitutional (i.e.it would raise an outcry) to dismiss them except for crime orgross immorality. It follows from the composition of thebody that if the Privy Council really met, it would do nobusiness for it would comprise members of both politicalparties : Salisbury, Gladstone, Hartington, Morley, Chamberlain,Randolph Churchill.(4) The queen is not bound by law nor by any constitutionalunderstanding to summon all her councillors; on thecontrary, modern constitutional understanding requires of herthat she shall summon but a small selection of them. A privycouncillor made so as a mere honour-e.g. an ex-judge-goesto the council board once to take the oath, and he never goesagain. Perhaps it may be said that he has a constitutional(it can hardly be a legal) right to be heard, if he has adviceto give. Perhaps it would be considered that the queen oughtnot to refuse him an audience; but obviously, if this rightwere really insisted on, our constitution would soon be topsyturvy: as, for instance, if, while the present ministry remainsin power, Gladstone insisted on constantly having the queen'sear. Possibly a formal meeting of the whole Privy Councilwould be summoned at the beginning of a new reign1.Again, a meeting might be summoned in some extraordinarynational emergency. A full meeting was held in 1839 whenthe queen's approaching marriage was announced.(5) But a meeting of the Sovereign with any of the PrivyCouncil (subject to such understarldi~lgs as may exist withregard to a quorzrm, the presence of the Clerk of the Council,or the books of the Council2) has enormous power. It is theconstitutionally correct and in some cases the legally necessarymode of exercising the comrnon law powers, 'prerogatives'of the crown. It is the statutory means of exercising manymost,and those the most important-of the statutory powersof the crown.At the accession of King Edward VII a full meeting was summoned atSt James Palace Jan. 23,1901, and attended by four Royal Dukes, two Archbishops,the Lord Chancellor, the Lord President and 97 other Lords of the Councll.An accurate record IS kept of the proceedings of the Prlvy Councrl, though itis not in terms described as ' Mlnntes.' I owe this information to the kindness ofMr Almerlc Fitzroy, the Clerk of the Council.

Constit zztioitza Z History(6) It is legally requisite that the Sovereign should havecertain high officers of state, a Lord Treasurer, for instance, orcommissioners for executing his office, a Lord Chancellor orLord Keeper of the great seal or commissioners entrusted withthe great seal, at least one Secretary of State. It is legallyrequisite, because it would become utterly impossible to governEngland lawfully without such officers, impossible, for instance,to get a penny out of the Bank of England without the commissionof a high crime. This is true in a less degree of theBoard of Trade, the Local Government Board, the committeeof Council for Education ; grave public affairs would be in amess if these bodies were non-existent for a month. This isthe result of modern statutes.(7) A certain number of these high officers of state aresaid to constitute ' the cabinet ': these, together with otherofficers, are said to constitute 'the ministry.' Neither of theseterms is known to the law. No official document constitutesthe cabinet. Some officers are always (by practice) membersof the cabinet, for instance, all Secretaries of State, the firstLord of the Treasury, the Chancellor, the Chancellor of theExchequer, the first Lord of the Admiralty. As to otherofficers, the practice varies : the Postmaster-Ge~~eral, thePresident of the Local Government Board, the President ofthe Board of Trade, the Lord Privy Seal, the Chancellor ofthe Duchy of Lancaster are generally members of the cabinet.In practice every member of the cabinet holds a legal office :most members hold extremely important legal offices ; evenwhen it is wished to have the presence of some one who ispast work, he is given an office-though one to which fewduties are annexed-the Chancellorship of the Duchy or thelike.(8) The truth that the cabinet is unknown to law mustnot be converted into the falsehood that it is a meeting ofpersons who have no legal powers. Each cabinet ~ninisteris a privy councillor, each is a high officer, each has usuallylarge legal powers. But the legal powers of a cabnet meetingare only the sum of the legal powers of its members. Thecabinet has no corporate powers.(9) The cabinet is a selection out of a larger body of'ministers'; the 'ministry' consists of those holders of officeunder the crown who according to constitutional usage areexpected to be members of one or other House of Parliamentand to act together. Recall the law as to the qualification forthe House of Commons. Office under the crown either does ordoes not disqualify from a seat in Parliament ; the law mustbe sought in a variety of statutes ; but the general result isthat only those holders of civil (as distinct from military)offices under the crown can sit who are intended and expectedto act together and to form a coherent body in parliament.There seem to be forty or fifty such offices. A ministryconsists of forty to fifty men, of whom fifteen to seventeenform the cabinet'. As instances of ministerial offices which arenot cabinet offices we may cite the law officers of the crown,the Attorney-general and Solicitor-general for England andfor Ireland, the Attorney-general and Solicitor-general forScotland, the junior lords of the Treasury, the junior lords ofthe Admiralty, the first Commissioner of Worl

Constitutionn Z Historyconstitutional understanding not law. When there is a changeof ministry, but a few officials are changed, though these arethe highest.It is just worth noting that the highest officers of theHousehold are changed-the Master of the Horse,the Master ofthe Buckhounds, the Mistress of the Robes-but this is a relic.(10) The quasi-corporate character of the ' cabinet ' andof the ' ministry ' is entirely extra-legal. One minister is notlegally answerable for what another does: he is answerable ofcourse for aiding and abetting, answerable as accessory beforeor after the fact, but probably responsibility does not gobeyond this: 'probably,' for who shall say what might happenupon an impeachment? but the question might quite conceivablybe raised upon an indictment in an ordinary court oflaw, and there seems no principle in our law which couldhold A guilty because he was a member of the cabinet atthe time when another member B committed some crime inthe execution of his office.Still the law not very indirectly compels harmony amongministers ; this is noticeable in particular as to Secretaries ofState who are fungible-if Secretary X were always revoking(as legally he might) the orders given by Secretary Y, therewould soon be an intolerable confusion. However unity issecured in the main by extra-legal rules ; rules which requirethat ministers shall either agree with their colleagues or resign,which require that as regards important practical questionsministers shall have the same policy. These rules, thoughthey have grown more strict since the beginning of thecentury, are and must be pretty vague ; there is no impartialtribunal to enforce them. It does not belong to us to discussthem: their sanction is a vote of want of confidence, andbeyond that the impossibility of carrying on business in theteeth of such a vote.So also the cabinet is expected to meet, to discuss measures,to have a policy. The meeting of the cabinet is perfectlyinformal; it receives no summons from the Sovere~gn; theSovereign is never present ; no record is kept.The Prime Minister is unknown to law; nor is the premiershipannexed to any particular office.v Statutory Govevmz-zef2ta.l Powers 405(11) All these high officers of state, indeed all officers ofstate, hold office legally durante beneplacito. But the queenis expected to choose a Prime Minister who will commandthe confidence of the House of Commons ; and to appoint hisnominees to office. Ministers expect to collectively resigntheir offices if they cannot command a majority in the Houseof Commons. A defeated minister has the choice betweenresigning, and counselling a dissolution of parliament. As towhen he may counsel a dissolution, no very precise rule canbe laid down. All we can say is that, according to modernprecedent, he is not bound to await a conflict with parliament,in which he will certainly be defeated.Officers of state, or the queen's executive servants, not beingmembers of the ministry, hold office durante beneplacito; stillde facto their tenure is very permanent; they do not 'go inand out with the ministry' ; they cannot (as a rule) sit in theHouse of Commons, and are expected not to take any veryactive part in party politics.(12) NOW let us consider the relation of these informalextra-legal bodies to the Privy Council.The Government of the country is carried on chiefly bythe exercise of statutory powers: to some small extent by theexercise of prerogative powers.Statutory governmental powers are most miscellaneous :we might classify them (a) according to the nature of thework to be done, as whether it be that of issuing general rules(subordinate legislation) or that of giving particular orders,or (b) according to the mode in which the power is tobe exercised. It is with (b) that we are now concerned.Of these statutory powers there are two great groups:-though classification is difficult, and in every particular casethe statute must be consulted and punctually obeyed.(i) Powers given to the Queen in Council: 'it shall belawful for H.M. by Order in Council!(ii) Powers given to one of the high officers of state, orto some combination of them: 'it shall be lawful for one ofH.M. principal secretaries of state.'(I 3) Roughly~peaking~the most important powers aregivento the Queen in Council-but this is only a rough statement.

406 Co~zstitution~ad HistoryPERIODv Delegated Pozuers 407How are they to be exercised ? By the queen at what islegally a meeting of her Privy Council. The queen holds suchmeetings from time to time. Summonses are sent out by theLord President of the Council to a few privy councillors. Itis, I believe, usual to get six members to attend, just a few ofthe cabinet ministers ; sometimes one of the queen's sons ; asalready so often said, no one has a right to be summoned1.The business, I believe, is of the most formal kind, the ordershave been prepared by the minister whose department theyconcern, if of importance they have been discussed in thecabinet; their nature is explained to the queen, who says'approved'; there is, I believe, no debate. The order is drawnup and signed by the Clerk of the Council, a permanentofficer: such is an Order in Council.The use of requiring a formal meeting of this sort is, I takeit, that to any Order in Council several members of thecabinet must almost necessarily be committed, if not legally,at least constitutionally. When power is given (say) to aSecretary of State to issue rules, orders and regulations as tothe discipline of the police, and he exercises this power, itmight be difficult, even in parliament, to hold the Chancellorof the Exchequer in any sense answerable for what hiscolleague had done if he chose to repudiate the act: itwould, I imagine, be much more difficult for any cabinetministerto deny responsibility for an Order in Council. Here,however, we go beyond the law.The form of an Order in Council is as follows :October 4, 1887.At the court at Balmoral the 15th day of September, 1887.Present,The Queen's most Excellent Majesty in Council.- .Whereas under certain statutes the Ecclesiastical Commissionershave prepared a scheme for making new parishes.1 Mr Almeric Fitzroy, the Clerk of the Council, kindly informs me that sofar as he is aware, no rule has been laid down as to the quwum necessary forOrders in Council; but that in practice the rule embodied in an Order ofFeb. ao, 1617 has been followed. It requires the presence of three of theLords of the Council. The presence of the Clerk of the Council is necessary, as itis his attestation which affords legal proof of the document.And whereas the scheme has been approved by H.M. inCouncil. Now therefore H.M. by and with the advice of hersaid Council is pleased to order and direct that the said schemeshall come into force on a certain date.C. L. PEEL.The London Gazette is prima facie evidence of an Orderin Council. Such orders are very different from statutes;judges are not bound to take judicial notice of them.The various powers which parliament has delegated maybe classified according to their nature.(I) Power of laying down general rules which shall havethe force of law-much is now done in this way : thus theHome Secretary has power to issue general orders as to thediscipline and pay of the police, the Local Government Boardhas power to issue general rules as to the government ofworkhouses, etc. In other words they exercise powers ofsubordinate legislation. The validity of these rules may bequestioned, they may be zdtrrt vires and so invalid.(2) Power of issuing particular commands: thus supposingthat a sanitary board will not make proper sewers, the LocalGovernment Board, on being satisfied of such default, mayorder the sewers to be made and order the defaulting authorityto pay cost.(3) Power to grant licenses for this and that: thus theHome Secretary may license a person to practise vivisection,may license a Jesuit to remain in England.(4) Power to remit penalties : not uncommonly given.(5) Powers of inspection : factories, mines, stores ofexplosives.(6) Inquisition : holding inquiries into explosions, railwayaccidents, etc.We will now take a brief survey of the powers of thevarious high officers of state, taking them one by one. Oursketch must be very brief and imperfect, but still it may serveto give us some insight into the real practical working ofEnglish public law.I. First we have the Treasury. There are five lords commissionersfor executing the office of Lord High Treasurer : a

ConstitutionaZ HistoryFirst Lord (Mr Smith, Cabinet), the Chancellor of theExchequer (Mr Goschen, Cabinet) and three junior lords(Mr Herbert, Col. Walrond, and Sir Herbert Maxwell)'.Legally they have, at least for the most part, equal powers.During the eighteenth century the Lords of the Treasury usedto meet as a board and transact business as a board, andthe practice of holding formal meetings was maintained untilsome forty years ago2. The supreme control fell more andmore into the hands of the Chancellor of the Exchequer, andnow the junior lords are in the view of parliament verydistinctly his subordinates. The First Lord does very littleofficial work. Very commonly he is Prime Minister; atthe present moment he is not Prime Minister, but he isthe recognized leader of the House of Commons ; he devoteshimself, I believe, rather to a general superintendence ofthe government business in the House of Commons than tothe exercise of those legal powers which he has as a Lordof the Treasury. Now acts of parliament frequently saythat this that and the other matter shall or may be doneby 'the Treasury.' An act of 1849 declares this to mean thatthe requisite document shall be signed by two of the Commissioners3.Such a document is required for a vast numberof purposes. To take one of the most important: whenparliament has granted a supply to the king no money cancome out of the Exchequer except in obedience to a warrantunder the royal sign manual countersigned by two Lords ofthe Treasury ; not a sixpence of the money voted by parliamentcan lawfully be spent until the king has signed a warrant,and this is countersigned by the Lords of the Treasury (29 and30 Vic., c. 39). I doubt whether it is generally known howmany documents the queen has to sign : were she to lose theuse of her hand for a month a great deal of public businesswould soon be in utter confusion. In 1830 George IV foundit difficult to write, an act of parliament had to be at once' Written in 1887-8.'Since 1856 the meetings have been discontinued,' Anson, The Crown, p. 172.' By the Interpretation Act of 1889 (52 and 53 Vict., c. 63) the expression'The Treasury' is defined to mean ' the Lord High Treasurer for the time being orthe Commissioners for the time being of H.M. Treasury.'The Treasztrypassed authorizing the use of a stamp to be afixed in hispresence to documents which required the use of the royalsign manual. In 1811, when George I11 lost his wits, thedifficulty was much more serious; the ministers could get nomoney because the king could not sign the necessary warrant:parliament had to pass a resolution authorizing and commandingthe issue of money; and it may be doubted whethereven this resolution, to which the king, of course, could notconsent, made the issue legal. But not only is the signmanual necessary, the counter-signature of two Lords of theTreasury is necessary also. That is one illustration of thepowers of the Treasury, but very generally you will find thatnothing whatever can be done which in any way involves theexpenditure of public money without the consent of theTreasury: this is required by law, by statute. Then it isthe duty of the Chancellor of the Exchequer to present to theHouse of Colnmotls the estimates of expenditure and to makeproposals for grants by which such expenditure shall be met,to recommend the imposition and the remission of taxes.2. We turn next to H.M. principal Secretaries of State.There are now five. During the greater part of the eighteenthcentury there were but two, though for a while there werethree. In 1801 we have three : one for Home Affairs, one forForeign Affairs, one for War and the Colonies. In 1854 afourth was appointed, War being separated from the Colonies.In 1858, when an end was put to the East India Company,a fifth Secretary of State was appointed to look after IndianAffairs. We of course freely talk of the Home Secretary, theForeign Secretary and so forth, but this division of labour ishardly known to the law. The language of statutes generallyis ' it shall be lawful for one of H.M. principal Secretaries ofState.' Legally any one of the five secretaries may exercisethat power-the subject matter of the act wiil decide who shallreally exercise it, thus if the act relates to the Colonies thenit will be exercised by the Colonial Secretary. However, tothis rule there are exceptions. I know of one instance inwhich a statutory power is given to the Secretary of State forthe Home Department (23 and 24 Vic., c. 34, an Act to amendthe Law relating to Petitions of Right).

Co%stitutionnl HistoryNow each Secretary of State has very large powers-a fewgiven him by the common law, a vast number given to him bystatute. Thus it seems certain that a Secretary of State mayby the common law commit to prison on suspicion of treasonor any treasonable offence, i.e. commit for trial. This is nogreat matter now-a-days and the power is not exercised,because it is easy enough to take the suspected person before ajustice of the peace. But it made a great noise in the eighteenthcentury in connection with the proceedings against Wilkes.Lord Halifax, the then Secretary of State, was guilty ofissuing warrants which the courts of law held to be illegal :e.g. a warrant to seize, not A. B., but the author of a particularseditious libel, No. 45 of the No~th Briton, and a warrant toseize the papers of A. B., suspected of being the author of aseditious libel. However, the Court of Common Pleas hadsomewhat reluctantly to hold that the Secretary of State hadpower to issue a warrant for the arrest of A. B., suspected ofa treasonable or seditious offence: how he had acqurred thatpower was much questioned, but it had been exercised duringthe earlier part of the century, and its existence could not bedenied. This power, however, is a small matter, though it hasmade much noise, compared with the vast powers with whichthe Secretary of State has been entrusted by modern statutes.A few examples may be given of the powers entrusted bystatute to the Home Secretary.By the statute instituting the modern police force, 1839,(2 and 3 Vic., c. 93, s. 3) the Secretary may from time to timeissue rules for the government, pay, clothing and accoutrenientsof the constables. The County force cannot be increased ordiminished without leave of the Secretary. So too in thegovernment of prisons, he possesses enormous powers : thushe may make rules as to classification of prisoners, and mayinterfere in particular cases, substituting one kind of hardlabour for another.Again he has received vast powers over the regulation offactory labour and the regulation and inspection of mines andcollieries. The attempt, characteristic of modern times, toprotect the economically weaker classes has given rise tostatutes which bristle with powers entrusted to the SecretaryThe Home Secretaryof State. Thus, for instance, his license is required for vivisection(1876, 39 and 40 Vic., c. 77).Again, he is empowered to grant certificates of naturalization,a discretionary power. Notice this 'devolution' of apower once kept by parliament in its own hand.These are instances of statutory powers : but the HomeSecretary is also the proper adviser of the crown as to the exerciseof certain prerogative powers: for instance, that of pardon.Perhaps the Home Secretary is more interesting to us thanother secretaries ; but they also have many statutory powersof the utmost importance. Thus, to take but one example:the act which put an end (1858) to the government of Indiaby the East India Company provided that 'all the powersand duties then exercised or performed by the East IndiaCompany should in future be exercised and performed by oneof H.M. principal Secretaries of State.'To a large extent the powers of these four Secretariesconsist in this, that it is for them (each in his own department)to advise the queen as to the exercise of powers which bylaw are her powers, either ancient prerogative powers or moremodern powers given to her by statute. Still (especially inthe case of the army) we find powers given expressly to theSecretary for War.All Secretaries are invariably in the cabinet: each has aparliamentary Under-Secretary, who is a minister but withouta seat in the cabinet.3. The Admiral's office is in commission : a first lord(cabinet) and three junior lords, two ' naval '-not necessarilyin parliament-and one 'civil,' in parliament; all of themin the ' ministry.'This is a really deliberative board.4. Of the Lord-Lieutenant of Ireland and his principalsecretaries, one of whom is often in the cabinet, we have notime to speak ; nor of the new Secretary (not of State) forScotland, created in 1885 to exercise for Scotland powerstheretofore exercised by the (Home) Secretary and some otherstaken from various English departments. More interestingto us are : the Board of Trade, the Local Government Board,the Education Department, the Board of Agriculture.

Constitutional History5. The Board of Trade is in form a committee of thePrivy Council, consisting of a President and certain ex oficiomembers. The First Lord of the Treasury,the Chancellor of theExchequer, the Secretaries of State, the Speaker of the Houseof Commons, and the Archbishop of Canterbury. But all itspowers can legally be and are exercised by the President,who practically is the Board. These powers are vast andmost various : in particular as to railways, and as to merchantshipping, as, for instance, the detention of unseaworthy ships.The whole of our mercantile marine has by an elaborate codebeen placed very much under the governance of the Board ofTrade. Then again since 1883 the working of the bankruptcylaw has been placed in the hands of official receivers, appointedand dismissible by and answerable to the Board of Trade.6. The Local Government Board, created by an act of1871, consists of a President and of certain ex oficio members(Lord President of the Council, Secretaries of State, PrivySeal and Chancellor of Exchequer), but all its powers can beexercised by the President with the counter-signature of hissecretary or assistant secretary. Thus it is a board only inname1.Manifold statutory powers in the working of our poor lawand sanitary law have been conferred upon it.The Poor Law Amendment Act of 1834, declared centralcontrol to be necessary and lodged it in the hands of threePoor Law Commissioners. Then (1847) came the Poor LawBoard consisting of a number of high state officials headedby a President. Finally in 1871 this Board was merged inthe newly-constituted Local Government Board.In a most general way all paupers are placed under its'rules, orders and regulations.' It exercises strict control overthe local administrators-boards of guardians ; can give themorders, and (within wide bounds) can legislate for them.So too with regard to the sanitary system: the greatcode of 1875, the Public Health Act, is worked in districts by'local sanitary authorities' who are much controlled by theLocal Government Board.34 and 35 Vict., c. 70.High Ofices of State7. The Education Department is also in form a committeeof the Privy Council: a ' Committee of the Council forEducation.' More recently it has received the title of 'EducationDepartment.' It consists of the Lord President of theCouncil and the Vice-President of the Committee, and certainex oficio members, e.g. the Chancellor of the Exchequer. Thepowers of the committee are practically exercised by the LordPresident (for whom duties have thus been found) and theVice-President'. The great system of Public ElementaryEducation introduced in 1870 is placed under control of thisdepartment, which thus has very large statutory powers,both of giving particular orders and of laying down generalrules.8. In 1889 (52 and 53 Vic., c. 30) a Board of Agriculturewas created2, consisting of a President of the Board, the LordPresident of the Council, the Secretaries of State, the FirstLord of the Treasury, the Chancellor of the Exchequer, theChancellor of the Duchy. Here also the powers are reallywielded by the President.g. Of the other high officials of state the Yostmaster-General possesses many statutory powers and sometimes sitsin the cabinet, the Lord Privy Seal has merely formal duties,while the Chancellor of the Duchy has now little work, forthough the old Palatine Court is kept up, the judicial work isdone by a Vice-Chancellor who is a judge.10. Lastly (though he is highest in rank) the LordChancellor, of whom more hereafter, is always a member of thecabinet. It is curious that one who is the highest of judges isa member of the cabinet, a politician actively engaged inparty warfare, who 'goes in and out with the ministry.' Itis curious: it is a reminder that in the past judicial andgovernmental functions have been much blended.An an illustration of the actual working of our governmentsystem we cannot do better than take the Municipal CorporationsAct, 1882 (45 and 46 Vic., c. so), our best specimen of acode; we find powers given to the Queen in Council, to a1 The Committee of Council for Education was superseded by a Board In 1899.62 and 63 Vict., c. 33.a Since 1903 the Board of Agriculture and Fisheries.

Constitutional HistorySecretary (Home) of State, to the Treasury, to the LocalGovernment Board.Sec. 23. A Town Council may make bye-laws, not to comeinto force for forty days: a copy to be sent to the Secretary ;if within that time it is disallowed by the queen with theadvice of her Privy Council it is not to come into force.Sec. 28. Accounts to be sent to the Local GovernmentBoard, which is to lay an abstract before Parliament.Sec. 30. If two-thirds of a Town Council agree to petitionfor the division of the borough into wards, it shall be lawful forH.M. by Order in Council to fix the number of wards. Thereuponthe Secretary shall appoint commissioners to determinethe boundaries; the scheme of boundaries to be sent to theSecretary, who is to submit it to H.M. in Council for approval.Sec. 62. Day for electing auditors of borough accounts isI March or such other day as the Town Council with theapproval of the Local Government Board shall appoint.Sec. 105. We come to the borrowing powers of the TownCouncil : here the ' approval of the Treasury ' is necessary ; sofor leases and sales of corporate land.Sec. 154. Administration of justice. It shall be lawfulfor the queen from time to time to assign to any personsH.M. commission to act as justices of peace [this impliesthe action of the Lord Chancellor].Sec. 161. If a stipendiary magistrate be wanted, theTown Council may petition the Secretary to make anappointment, and thereupon it shall be lawful for the queen toappoint a barrister of seven years' standing.Sec. 162. If the borough wants a separate Court of QuarterSessions, the queen on petition to H.M. in Council may grantthe court.Sec. 164. The Table of fees of the Clerk of the Peace isto be submitted to the Secretary of State for confirmation.Sec. 210. Grant of new charters. On petition of the inhabitantsthe queen by the advice of her Privy Council maygrant a charter, but the petition must first be referred to acommittee of the Lords of H.M. Privy Council, so thatobjections may be heard.etc.etc.v Legal Theory of the Constitution 41 5My object in saying so much of the statutory powers bymeans of which our government is now-a-days conducted, isto convince you that the traditional lawyer's view of the constitutionhas become very untrue to fact and to law. By thetraditional lawyer's view I mean that which was expressed byBlackstone in the middle of the eighteenth century, and whichstill maintains a certain orthodoxy. According to that view,while the legislative power is vested in king and parliament,what is called the executive power is vested in the king alone,and consists of the royal prerogative. Now most people knowthat this is not altogether true to fact-they know that thepowers attributed to the king are really exercised by theking's ministers, and that the king is expected to haveministers who command the confidence of the House ofCommons. Still I think that they would say that this wasa matter not of law, but of convention, or of constitutionalmorality-that legally the executive power is in the king,though constitutionally it must be exercised by ministers. Butthe point that I wish to make is that this old doctrine is noteven true to law. To a very large extent indeed England isnow ruled by means of statutory powers which are not in anysense, not even as strict matters of law, the powers of theking. Let us take an instance or two. Look at the policeforce, that most powerful engine of government. That forcewas gradually created by means of a series of statutes rangingfrom 1829 to 1856. To some extent it was placed under thecontrol of local authorities, of the justices of the peace in thecounties, of watch committees in the boroughs: but a powerof issuing rules for the government was given-to whom?not to the queen, but to one of H.M. principal Secretaries ofState, which means in practice the Home Secretary. It isnot for the queen to make such regulations: it is for theSecretary. So as to the administration of the poor law. In1834, when the law was remodelled, a central authority wascreated with a large power of issuing rules, orders andregulations as to the relief of the poor. This power wasgiven, not to the king, but to certain poor law commissioners,and it has since been transferred to the Local GovernmentBoard. Look again at the powers of regulating the mercantile

416 Constitzdionad History PERIODmarine created by the great Merchant Shipping Act of 1854or the powers relating to public elementary education givenby the act of 1870. These are not given to the queen-theyare given in the one case to the Board of Trade, in the othercase to the Education Department1.How vast a change has taken place since Blackstone's daywe may see from a very interesting passage in his book,Book I, chap. Ix2 He has a chapter on the SubordinateMagistrates. In this he speaks of sheriffs, coroners, justicesof the peace, constables, surveyors of highways, and overseersof the poor. He prefaces it with these words, ' In a formerchapter of these commentaries we distinguished magistratesinto two kinds: supreme, or those in whom the sovereignpower of the state resides ; and subordinate, or those who actin an inferior secondary sphere. We have hitherto consideredthe former kind only, namely the supreme legislative poweror parliament, and the supreme executive power, which is inthe king; and are now to proceed to inquire into the rightsand duties of the principal subordinate magistrates. Andherein we are not to investigate the powers, and duties ofhis majesty's great officers of state, the lord treasurer, lordchamberlain, the principal secretaries or the like; becauseI do not know that they are in that capacity in any considerabledegree the objects of our laws or have any veryimportant share of magistracy conferred upon them : exceptthat the secretaries of state are allowed the power of commitmentin order to bring offenders to trial.' Now that is avery memorable sentence, and on the whole (though perhapsit is a little exaggerated) I think that it was true in Blackstone'sday. The lord treasurer, the secretaries of state, were of coursevery important persons-perhaps quite as important then asnow-but the law knew them not, or merely knew them aspersons who advised the king in the use of his prerogatives.The law gave powers to sheriffs and coroners, to surveyors ofhighways and overseers of the poor; it gave few powers toThe Merchant Shipping Act of 1854 is now superseded by the MerchantShipping Act of 1894.Sir Willlam Blackstone's Conzt~ze;zZaries on the Lazws of EnfZand werepublished in I 768-9.Distribution of Executive Powe~ 4 I 7the high officers of state, to the men who for good and evilhad really the destinies of England in their hands : the powersthat they in fact exercised were in law the king's powers.But I know no proof of the power of Blackstone's genius sostriking as the fact that the sentence that I have just quotedshould be repeated now-a-days in books which profess to setforth the modern law of England. Does not our law knowthese high officers of state? Open the statute book, on almostevery page of it you will find 'it shall be lawful for theTreasury to do this,' 'it shall be lawful for one of theSecretaries of State to do that.'This is the result of a modern movement, a movementwhich began, we may say, about the time of the Reform Rillof 1832. The new wants of a new age have been met in anew manner-by giving statutory powers of all kinds, sometimesto the Queen in Council, sometimes to the Treasury,sometimes to a Secretary of State, sometimes to this Board,sometimes to the other. But of this vast change our institutionalwriters have hardly yet taken any account. They goon writing as though England were governed by the royalprerogatives, as if ministers had nothing else to do thanto advise the king as to how his prerogatives sho~ild beexercised.In my view, which I put forward with some diffidence andwith a fill1 warning that it is not orthodox, we can no longersay that the executive power is vested in the king: the kinghas powers, this minister has powers, and that minister haspowers. The requisite harmony is secured by the extra-legalorganization of cabinet and ministry. The powers legallygiven to the king are certainly the most important, but Icannot consent to call them supreme. To be able to declarewar and peace is certainly an important power, perhaps themost important power that the law can give, and this belongsto the king. But the power to make rules for the governmentof the police force is also an important power, and this ourlaw gives to a secretary of state. The one power may bevastly more important than the other, but it is in no sensesupreme over the other. The supremacy of the king's powers,if it is to be found anywhere, must be found in the fact

that the ministers legally hold their offices during his goodpleasure.There is one term against which I wish to warn you, andthat term is 'the crown.' You will certainly read that thecrown does this and the crown does that. As a matter of factwe know that the crown does nothing but lie in the Tower ofLondon to be gazed at by sight-seers. No, the crown is aconvenient cover for ignorance: it saves us from askingdifficult questions, questions which can only be answered bystudy of the statute book. I do not deny that it is aconvenient term and you may have to use it; but I do saythat you should never be content with it. If you are toldthat the crowri has this power or that power, do not be contentuntil you know who legally has the power-is it the king, isit one of his secretaries: is this power a prerogative poweror is it'the outcome of statute? This question is often anextremely difficult question, and one ~f the difficulties bywhich it is beset is worthy of explanation.We find that there is often great uncertainty as to theexact limits of the royal prerogative. Since the settlement of1688 very little has been done towards depriving the king byany direct words of any of his legal powers. Those powerswere great, and they were somewhat indefinite. Very seldomhas any statute expressly taken them away, very seldom hasany statute said in so many words ' it shall not be lawful forthe king to do this.' But without directly destroying theseprerogative powers statutes have created a large number ofpowers dealing with the same matters, some given to the king,some to one or to another of his great officers. Such modernpowers have been definite and adapted to the wants of moderntimes, and they have been freely used. On the other handthe old prerogative powers have becomc clumsy and antiquated,and have fallen into disuse: the very uncertainty asto their limits has made them impracticable. Still they havenot been expressly abolished, and to the legal student thequestion must often occur whether they are or are not inexistence. Kcmember this, that we have no such doctrine asthat a prerogative may cease to exist because it is not used.On the other hand we shall often find that it would bev The Prerogative 419extremely difficult to use these prerogative powers withoutdoing something definitely unlawful. Let me give a fewexamples.What an outcry there would be if the queen were toattempt to debase the coinage. Probably such an attemptwould cost her her throne. Nevertheless Sir M. Hale was ofopinion that the king had power to debase the coinage, andwith the decided cases before us it is difficult to say that hewas in the wrong Even Blackstone was not certain that thispower did not exist1. Well, so far as I am aware, that powerhas never been expressly taken away by statute. We maysay pretty confidently that the power does not exist, but why?Not because it has been expressly taken away, not because ithas fallen into desuetude, but because for a very long time paststatutes have fixed the amount of gold and silver in the coins :thus by statute a sovereign is to weigh 123'27447 grains, andis to be eleven-twelfths gold and one-twelfth alloy. So longas such statutes exist the prerogative power of regulatingthe coinage cannot be used, but it is not until we have gonethrough those statutes and seen how they deal with the wholematter that we are entitled to say that the prerogative issuperseded.Take a more difficult case. Can the king erect new courtsof justice ? Most indubitably this power was exercised in theMiddle Ages. Nothing was commoner than for the king byhis charter to grant to some town or some lord of a manorthe right to hold a court. Even when in the seventeenthcentury the Courts of Star Chamber, of the Council of Wales,of the Council of the North, had become hateful burdens, noone seems to have questioned the king's power of erecting newcourts of common law. A distinction was drawn betweencourts of common law and other courts : he might not createa new court of equity. Has the queen then now-a-days apower to create new courts? It has never been expresslytaken away, and I believe we must say that it exists. I takethis from a recent judgment, ' It is a settled constitutionalprinciple or rule of law, that although the crown may, by its1 See above, p. 260.

420 Constitutional History PERIODprerogative, establish courts to proceed according to thecommon law, yet it cannot create any new court to administerany other law; and it is laid down by Lord Coke in theFourth Institute that the erection of a new court with anew jurisdiction cannot be without an act of parliament'(In re Bp. of Natal, 3 Moore, P.C. (N.S.) 152). AS a matterof fact this prerogative power of erecting new courts hasnot been used in England for a very long time past. Inrecent years the whole country has been covered by anetwork of new local courts-the (so-called) new countycourts. But this was not done under an exercise of theprerogative, but by virtue of powers given to the Queen inCouncil by a statute of 1846 (9 and 10 Vic., c. 95) whichregulated the jurisdiction of these new courts. There aretwo reasons why this prerogative has fallen into disuse.(I) Owing to inodern changes in the law a court whichcould administer nothing but common law would be a somewhatuseless and very clumsy affair. (2) Owing to theappropriation of supplies the queen would have no moneywith which to pay the judges of new courts unless she took itfrom her privy purse. Still we cannot say that the prerogativeis gone ; at any moment it might become important. Inthe first part of the eighteenth century courts were establishedin India by virtue of the royal prerogative, and as regards thecolonies I am not sure that the power has not been exercisedfor them in much more recent times. In 1827 the law officersadvised the king that the extent of his power to create a newcourt in Canada was very doubtful, and that it would be wiserto obtain an act of parliament.Often enough this difficulty must occur to anyone who isstudying our constitutional law. He will be told that a prerogativepower exists ; then he will find a modern statute takingno notice of that prerogative, but enabling the king, or someone of the high officers, to exercise a more limited power.Then the question will occur to him-how far does this modernstatutory power take away the old prerogative power ? Youwill understand the difficulty better from an example. Thegreat Municipal Reform Act of 1835 (now represented by theMunicipal Corporations Act, 1882, 45 and 46 Vic., c. 50)vDoubtfztl and Disused Pre~ogatives 42 Iempowered the king to create in any borough a separateCourt of Quarter Sessions for that borough. It laid downrules as to the exercise of that power, for instance, the courtwas to be held by a recorder, who was to be a barrister offive years' standing, and to hold office during good behaviour.No notice was taken of the prerogative power of erecting newcourts. Now suppose that the queen creates a Court ofQuarter Sessions which does not exactly comply with thelanguage of the statute-has she power to do this? Not bystatute ; but how about the prerogative power? We haveto consider, and it may be a very delicate question, how farthe act has tacit& curtailed the royal prerogative. In practicesuch questions may seldom arise-the queen's advisers arecareful to keep within the limits of the statutory powersbutfor the student, for the lecturer, the difficulty is very great.He will hardly dare to say that in no conceivable case couldthe old prerogative power be used and used lawfully. Thiscomes of our great civility to the king; we have seldomsaid to him 'you may not do this,' we have said, 'youmay do that,' and then left to ourselves or our judgesthe problem of deciding how far the ' may ' necessarily impliesa ' may not.'One more illustration of a simpler kind. We find it laiddown that if the king, under his great or his privy seal, prohibitsa man from leaving the realm, or enjoins him to come backfrom foreign parts, and this command is disobeyed, thedisobedience may be punished by fine and imprisonment.I believe that we must say that this is the law, though fora long time past it has not been used, and though any use ofit except in very extraordinary circumstances would surprisethe nation and create a great outcry. Thus our courseis set about with difficulties, with prerogatives disused, withprerogatives of doubtful existence, with prerogatives whichexist by sufferance, merely because no one has thought itworth while to abolish them.

v Co?zstitutionaZ Powers 423C. CZassz>catiotz of the Powers of the Cromn.Still we must do our best, and I will venture to suggestthe following classification of the powers of 'the crown' (bywhich phrase I understand the powers of the king and thepowers of the high officers of state) :I. Powers relating to the constitution, assembling anddissolving of parliaments, and of assenting to statutes.2. Powers relating to foreign affairs, to peace and war, etc.3. Powers of appointing and dismissing officers, civil andmilitary, executive and judicial.4. Powers relating to the collection and expenditure ofthe revenue.5. Powers relating to military and naval forcer,.6. Powers connected with the administration of justice.7. Powers connected with maintenance of order.8. Powers connected with social and economic affairs,such as public health, education, trade, etc.g. Powers connected with religion and the NationalChurch.I will now say a few words as to the powers of the firstthree of these classes ; the others we will treat if time serveswhen we try to view as a whole the Fiscal System, the MilitarySystem, the Administration of Justice, the Police, Social andEconomic Government, and the National Church.I. As we have already seen, the king's power of summoning,proroguing, dissolving parliament, is very large. I willnot go over this ground again. Briefly the law comes to this,that a parliament cannot be kept in existence beyond sevenyears. At the end of that period it would be dissolved withoutthe king's action; on the other hand the law requires thata parliament shall sit once in every three years, but does notprovide any machinery whereby a parliament can come intobeing without royal summons, should the king disobey thisrule.Then, without the king's assent, no bill can become law.A statute is enacted by the king, by and with the advice andconsent of the lords, spiritual and temporal, in parliamentassembled, and by the authority of the same. It is only since1445 that these last words, 'by the authority of the same,'become a regular part of the legislative formula. Go backhalf a century further, and acts are passed by the advice ofthe lords at the petition of the commons. But to this day theform makes the statute the act of the king. To speak of hispower as a veto is hardly correct; the bill will not becomelaw if he merely abstains from interfering, it will not becomelaw unless he expressly assents. The last occasion on whichthat assent was withheld, was in 1707, when Anne withheld itfrom the Scotch Militia Bill. William I11 had withheld it onseveral important occasions. It seems to me that circumstancesmight be conceived in which the king's ministers mightadvise him to refuse consent, and yet escape general condemnation,as on the sudden outbreak of a war or some similarunforeseen emergency.Really, however, in a working sketch of the constitution itis more important to notice that the king has a considerablepower in constituting one of the two Houses. If the bishopsare not royal nominees, this is merely because a bare form ofelection by the cathedral chapters is kept up. The kingagain can create as many temporal peers as he pleases, but thehereditary principle makes any recourse to this power for thepurpose of packing the House an objectionable measure.A threat, however, of using it, has on more than one occasionproved effectual, and without doing anything that is thoughtat all strange, a modern cabinet can use this prerogative toreward or shelve its followers, and to divide the members ofthe ministry between the two Houses.2. Next, I should place the prerogative of making warand peace. This power, of the utmost importance, belongs tothe king. Without the consent of parliament he can directthe invasion of a foreign country. Of course, parliament hasa certain check on this power. It might refuse to vote thenecessary supplies. What is mare to the purpose, it insists onknowing from the king's ministers what are the relationsbetween the king and foreign governments, on having diplomaticcorrespondence laid before it, and so forth. Still it takesno act of parliament to make a war, even a war of aggression,

424 Constitutional History PERIODand practically a ministry has a great deal of power as regardsforeign affairs, and might even force a reluctant nation intoa war from which it would be impossible to withdraw. Thisis really a great matter.Stephen (following Blackstone) says that to make a warcompletely effectual it is necessary that it be publicly declared,and duly proclaimed by the sovereign's authority1. I believethat to be misleading, and that neither English law, nor whatis called International Law, requires any formal declaration ofwar" 1 believe that an English court would hold that therewas war so soon as the queen had authorized acts of hostility.Close to this power of making war and peace, Blackstonespeaks of the power of making treaties, and says what seemsto me very untrue. ' It is also the sovereign's prerogative tomake treaties, leagues and alliances with foreign states andprinces. For it is by the law of nations essential to thegoodness of a league, that it be made by the sovereign power;and then it is binding upon the whole community; and inEngland the sovereign power, poad hoc, is vested in the king.Whatever contracts therefore he engages in, no other powerin the kingdom can legally delay, resist or annul3.'Now in contradiction to this we may, I believe, say thata treaty made by the king has in general no legal effectwhatever4. The king, as just said, can mAke peace and canmake war, and the making of either will of course haveimportant effects: whether an act be a laudable attack ona public enemy, or mere piracy, is one of the many questionsthat might thus be decided. Also it seems certain that as anincident to a treaty of peace, the king may cede territory,may at all events cede territory acquired by him during theH. J. Stephen, New Comntenta~ies o~z the Laws of E~z~Zatzd, 14th edn. vol. 11,p. 495 allows that 'the modern practice is by no means uniform.'" Convention was signed at the Hague Conference in 1907 according towhich 'the Contracting Powers recognise that hostilities between themselvesmust not commence without previous or explicit warning in the form either of areasoned declaration or of an ultimatum with conditional declaration of war.'Pad. Papers, MisceZlar~eous, No. I, 1908.~o~orrzn~entaries 1, c. 7 § i r .* This view was upheld by the Privy Council in Walker v. Baird, LR. AC.1892, P. 491.v Treaty-ma Ri?zg Powers 425war1. Exactly how far this power extends is a somewhatdebateable matter, and I think it very doubtful whether thequeen can cede land subject to the British parliament, exceptin a treaty of peace ; could she sell Jersey, Guernsey, or Kentto France? I much doubt it. When in 1782 it becamenecessary to recognize the independence of the AmericanColonies, an act of parliament was passed authorizing theking to make peace and to repeal all statutes relating to thoseColonies2. But as to the more general principle put forward byBlackstone and Stephen, its unsoundness can be easily provedby reference to the law about extradition. The common lawof England, at least for a long time past, has been that thoughthe king bound himself to surrender criminals, still the treatycould not be carried out, save by virtue of an act of parliament.Suppose that under such a treaty a person was arrested andbrought before one of the courts by habeas corpus; the treatywould have been treated as waste-paper-the king has no powerto send men out of the country, and cannot give himself powerby making a treaty. This has been law at least all throughthe nineteenth century. It is fair to Blackstone to say thatthe point was not so clear in his own day. The Court ofExchequer seems to have thought that the king might handover fugitives. However, there is no doubt about the matternow. Our earliest extradition treaties were individuallysanctioned by parliament. The general act, 1870 (33 and 34Vic., c. 52), now in force, enables the queen, by Order inCouncil, to apply that act in the case of any foreign state withwhich she has made an arrangement for reciprocal extradition.This is a good instance of a power given to the queen by act ofparliament, one of those royal powers which me do not usuallycall prerogatives. I take extradition as one example, butthe general principle is quite unsound. Suppose the queencontracts with France that English iron or coal shall not beexported to France-until a statute has been passed forbiddingexportation, one may export and laugh at the treaty. Still,1 For recent cases and debates bearing on the cession of territory, see Ilbert,Gozarttnrent of ltzd~a, and edn. p. 20;.22 Geo. III, c. 46: see Forsyth, Cases aud Opiltiunx in ConstitutionalLa~u,pp. 182-4, on the general question of the power to cede territory. F.W. M.

426 Constitutionn Z History PERIODthough this is so, we must remark that the king has herea very substantial power, though it does not operate directlyon the law. It would obviously be a serious step, wereparliament to refuse to pass the laws necessary for carryingout a treaty already concluded. The honour of the nationmight be already pledged. The interrogation of ministers inparliament, perhaps, is a sufficient guard against this danger.In this context the power to send and receive ambassadorsdeserves notice. It has some important legal effects. Anambassador accredited to the queen occupies a very privilegedplace. To a large extent he, his family, his suite and hisservants, are placed outside the ordinary civil and criminallaw of the country, it being unlawful and criminal to arrestthem, or to exercise any compulsory process against them.In this matter the English courts receive what they considerto be the best doctrines of International Law. But the arrestof an ambassador, or of any servant of his, publicly registeredas such, is punishable under a statute of 1708 (7 Anne, c. 12).That statute was passed in consequence of the ambassador ofPeter the Great having been arrested for debt, and it denouncesa very severe punishment against those who are guilty of likeacts in the future. The exact limits of the privilege are notin all respects well defined, and are, I think, best discussed asa topic of International Law.A brief note on the treatment by our law of aliens maynot be out of place. By the common law, and down to 1870,an alien could not hold real property in England. Thecommon law allowed him to hire a house for his own habitation,and an act of 1844 (7 and 8 Vic., c. 66), allowed him incertain circumstances to take a lease for 21 years at the!ongest. He was incapable of inheriting land, and if hepurchased land the king became entitled to it-might turnhim out, and take the land to himself. On the other handthe alien could hold movable goods, could deal with themfreely, and bring actions for debts or for wrongs done to hisperson or his goods. In 1870 the law was changed by theNaturalization Act (33 and 34 Vic., c. 14), which declared thatreal and personal property of every kind in the UnitedKingdom might be acquired, held, and disposed of by anv The Law of Aliens 427alien, as though he were a British subject; but he was notqualified to be the owner of a British ship, and the act did notqualify him for any office, or for any parliamentary, municipal,or other franchise. I believe that, as regards all that we cancall private law, property, tort, co~~tract and so forth, we haveno need now-a-days to distinguish between subject and alien,save in that one matter of the ownership of British ships. Onthe other hand I think we may say that as a general rule ourcommon law, still in force, excludes aliens from political officesand political rights, and the act of 1700 settling the successionto the crown expressly declares that no alien can be a memberof the Privy Council, or of either House of Parliament. Butan alien can gain even political rights by ceasing to be analien : by becoming naturalized.An act of parliament might of course turn an alien intoa subject, and until lately acts having the object of naturalizingthis or that foreigner were not uncomnlon. A statute,however, was necessary ; it seems to have been established atan early time, certainly before Coke, that the king withoutparliament could not turn an alien into a subject for allpurposes. He might for some, but not for all. This doctrinegave rise to the class of persons known as denizens-intermediatebetween subjects and aliens. The denizen was somade by the king's letters patent, i.e. by an act done by theking without parliament. The limit to the royal power (asI understand it) was this: the person whom the king madea denizen of his realm became capable of acquiring lands bypurchase or devise, and of holding them when acquired, andin general he became a subject of the realm, but the kingcould not make him capable of inheriting. An act of parliamentmight of course do even this, and Naturalization Acts(I believe) usually did it, but the king could not do it. Thisis worthy of notice as a good illustration of a matter of which Ihave already spoken. Neither now nor at any time past can wesay with any exactness that the function of the Englishparliament is purely legislative, that cf the English kingpurely executive. Parliament habitually passed acts naturalizingthis person and that by name; if we &all these actslegislative, how are we to refuse the same term to letters

Constitutional Historypatent, which do almost exactly the same thing? The linebetween making A. B. a denizen and naturalizing him is notthe line between executive and legislative functions. The actof 1870, amending the previous act of 1844, has provideda mode whereby persons may be naturalized without specialact of parliament, but has expressly preserved the queen'spower of granting letters of denization. I should imagine thatsuch power is seldom if ever used, for it is easy to becomenaturalized. British nationality can now be granted by aSecretary of State. The applicant must have resided in theUnited Kingdom for five years, or have been in the service ofthe crown for five years, and must intend when naturalizedto reside in the United Kingdom, or to serve under the crown.The Secretary has an absolute discretion in giving or withholdingthe desired certificate, and need assign no reason forrefusal. The oath of allegiance must be taken. If thecertificate be granted, then the naturalized alien shall, withinthe United Kingdom, have all political and other rights andprivileges to which a British subject is entitled1.3. I think it well to notice separately that almost allthose who have any governmental or judicial powers of anyhigh order are appointed by the queen ; if their powers areof a judicial kind, they generally hold office during goodbehaviour; if their powers are not judicisl, they generally holdoffice merely during the queen's good pleasure and no reasonneed be assigned for dismissing them. I think it well tonotice this separately, for it is these powers of appointmentand dismissal which give to our scheme of government therequisite unity. The privy councillors hold their places duringgood pleasure, so do those high ofiicers of state who form theministry. It is not usual to remove a privy councillor, andas regards the choice of ministers, the king is practicallyobliged to suit himself to the will of the House of Commons.But the legal power is absolute; and it is just because thelegal power is absolute that our system of party governmentis possible.I mention this power of appointing and dismissing theA criticism of the Act may be found in the Report of an Inter-departmentalCommittee on the Naturalization Laws, rgor.high officers of state by itself because it is so very important,but of course the king has a very general power of appointingnot only those whom we speak of as collectively forming theministry, but all or almost all of those who hold public officesof first-rate importance. Blackstone calls him the fountain ofhonour, of office and of privilege. As regards mere honours, itwere needless to say much; the making of knights and baronets,the invention of new orders of knighthood, the conferringof ceremonial precedence, is no very great matter; and asto the power of making peers, which is of considerableimportance, we have already spoken. But look at the wholelegal structure of society, and we shall generally find thatthe holders of important public offices are appointed by theking and very commonly hold their posts merely during hispleasure. I do not think it possible to lay down any sweepingprinciple about this matter : the terms and mode of appointmentvary very greatly. Thus allnost all persons who haveany judicial duties to perform are appointed by the king,but that is not universally true; the county court judgesare appointed by the Lord Chancellor under statutory power.Again, we may say that since 1700, it has been the generalpolicy of the legislature to secure the independence of thejudges by making their tenure of office tenure during goodbehaviour. The judges of the superior courts hold duringgood behaviour, but can be dismissed on an address presentedby both Houses of Parliament. The tenure of the countycourt judges is rather different : they can be removed by theLord Chancellor for inability or misbehaviour. On the otherhand the justices of the peace, whose duties may perhaps besaid to be in part judicial, in part executive, hold only duringgood pleasure and can be dismissed without the assignmentof any cause. It is, on the other hand, the general policy ofour modern law that executive officers shall hold only duringgood pleasure, shall be dismissible without the assignmentof any cause. But we must look to the statute book abouteach office, and not rely very confidently on any generalprinciple. For instance, take the Comptroller and Auditor-General: we do not call him a judge ; still it has been thoughtof exceeding importance that he should be a very independent

430 Constitutional ffistory PERIODperson, and looking to the act under which he is appointed(1866, 29 and 30 Vic., c. 39), we find that he holds duringgood behaviour subject to removal on an address presented byboth Houses of Parliament. We must remember too that wecannot state this general policy as a rule of common law;formerly the king had a very large power of granting officeson what terms he pleased ; down to William 111's reign, wefind the judges appointed dz~mnte beneplacito ; on the otherhand a large number of executive offices, as we should callthem, places in the Exchequer and so forth, were held forlife or for several lives. To take one more instance: a countypolice force is under the command of a chief constable. Nowa pviori we cannot tell whether or no this officer is appointedby the king; were we to guess that he is, we should guesswrongly, for he is appointed by the justices in quarter session.The extent to which what I may call the subordinate governmentof the country is under the control of the king, thecentral government, the extent to which it is ordered by localauthorities, the quarter sessions, the municipal counties, theconstitution of these local authorities-these are mattersregulated in various ways by countless acts, which can onlybe studied in detail. A great vague phrase such as 'Theexecutive power is in the king and is exercised by theministry' gives us no help whatever.D. The Fzscal System.We turn to say a little of our fiscal system-of the collectionand expenditure of the royal or the national revenue.The first point that we have to seize in dealing with thissubject historically is that in old times the national revenuewas very really the king's revenue, or, to put it another way,there was no national revenue ; whatever money came to theking's hand was his to deal with as he pleased, whether itconsisted of the rents of his demesne lands, or the profitsof the feudal tenures, or the outcome of the aids or subsidiesgranted to him by the great council of the nation. Thecrown lands were the king's lands; what is more, the king'slands were the crown lands-a distinction between the king'sv NntionaZ and Royal Revenue 431private capacity and his public capacity was not yet observed.Before the Norman Conquest there was indeed land whichwas conceived of as belonging to the people, the folk-land ;and the king himself could make no part of it his own withoutthe consent of the wise1. But at the Conquest this simplybecomes terra Regis, and very probably the Conquest didbut hasten the end of a process that had already gone far.In later days we find the practical denial of any distinctionbetween the property which the king has, as king, and theproperty that he has, as man, carried to its logical extreme.'If,' says Coke, 'the king purchaseth lands of the customof gavelkind and die leaving divers sons, the eldest son shallonly inherit these lands1! So on the death of Edward VIall his fee simple lands, however acquired, descended tothe Lady Mary, to the exclusion of her half-sister the LadyEIizabeth. All the lands of the king, by whatever titleacquired, were his to grant away as he pleased ; on the otherhand, he could not devise them by his will. The notionthat the king was in any sense a trustee for the nation ofthese lands grew up but very slowly; rather the notion wasthat the king had a large property of his own, and that heought not therefore to come begging of his subjects excepton special occasions. No distinction was taken between landwhich the king had bought with money out of his own pocketand land which came to him by way (for example) of escheat.Nor was this singular; other persons besides the king gotlands by way of escheat. Complaints against the king's lavishgrants to his favourites are from time to time loud, but theydo not issue in prospective legislation; they issue in acts ofresumption-acts enabling or obliging the king to resume thelands granted away by himself or his predecessors. Thus in1450 a general act of resumption was passed, by which allgrants made since the accession of Henry VI in 1422 wereannulled. A similar act was passed in 1473 under Edward IV.In 1485, immediately after the Battle of Bosworth, the grantsmade by the kings ot the House of York were annulled. Thiswas, I believe, the last precedentqor an act of resumptionSee above, p. 57. CO. Lit. I 5 6.Some lands granted to abbeys in the reign of Qugen Mary were resumed by

ConstitutionaZ Historywhen in 1700 William I11 was compelled to assent to an actannulling all his grants of Irish land. The passing of thisact is described at the very end of Macaulay's history ; it isperhaps the most noteworthy example of the practice knownas ' tacking a money-bill '--the assent of the House of Lordsto a measure which may well seem to us extremely unjustwas extorted by the addition to the bill of clauses grantingthe land tax ; the lords, it was contended, could not amendthis money-bill, while to reject it would have been to deprivethe crown of the means of carrying on government. It was,I believe, this incident which led to the first prospective restrainton the king's power of granting away his lands. Onthe accession of Anne an act was passed (I Anne, c. I) whichrestricted the queen's power of alienation to the granting ofleases, which in general were not to be for more than 31 yearsor three lives, and were to reserve the ancient rent or a reasonablerent. Now even this act drew no distinction betweenlands belonging to the queen in her public, and those belongingto her in her private capacity. It placed the same restrictionon the alienation of any of her lands. It is just anothercentury before the distinction, to which I have referred, findsexpression in the statute book. This was done in 1800by 39 and 40 Geo. 111, c. 88. By,a process which I shalldescribe hereafter, a distinction had by this time been madebetween that part of the royal revenue that was devoted tothe support of the king's household and of the honour anddignity of the crown of Great Britain and the great bulkof the revenue which was to be used for what we may looselycall national purposes, and since the accession of George I11the revenue of the crown lands had come under the latterhead. It was at least a serious question whether lands whichKing George had bought out of what may be styled his ownpocket-money were not subject to that restraint on alienationthat was imposed in 1701. SO in 1800 parliament enabledthe king to hold land in a private capacity. Land purchasedby him out of money devoted to his privy purse was to beheld by him with all that liberty of alienation that a subjecthas; he was, for example, to have power to devise them byhis will. However a good many other statutes have beenThe Kigg's Ordi~nvy Revenue 433required to make this matter clear, and I think that it isnot until 1862 that we find in the statute book such a phraseas 'the private estates of Her Majesty.' I am not very surethat one part of the old law does not yet prevail. The king,it used to be said, could have no heir but the heir to thecrown. I have given you Coke's illustrations of this and Icannot find that the rule has been altered ; so that if thequeen died intestate and if according to the usuaI canons ofinheritance, three daughters would be her co-heiresses ; theeldest would inherit not only the crown of Great Britain butalso Osborne House or whatever private estates in fee simplethe queen had at her death. But I will not say this confidently,for there are many long acts of parliament.I mention these things in order to show how slow andhow recent has been the growth in our law of that distinctionbetween the national revenue and the king's private pocketmoneywhich we naturally suppose to exist. It has takenmany statutes to get this matter clear. It becomes cleargradually as parliament takes upon itself to appropriate thesupplies that it grants, to say that they are only to be usedfor certain definite purposes. Of the early history of thisappropriation of supplies we have already said something.In 1665 Charles I1 asked a very large sum of money for theDutch war, and consented that a clause should be insertedin the act declaring that the money raised under that actshould be applicable only to the purposes of the war. Thiswas an important concession, and similar appropriations wereafterwards made during his reign. Since the Revolution thepractice has, I believe, never varied; in granting money tothe crown, parliament has appropriated the supply to particularpurposes more or less narrowly defined.At this point it becomes necessary to remember that theking had a very considerable revenue which was not grantedto him by parliament. This is what Blackstone speaks of asthe king's ordinary revenue as contrasted with that extraordinaryrevenue which arises from taxation1. He classifiesit thus : first there are revenues of an ecclesiastical kind, theCovmtentarzes, vol. I, c. 8.

Co~zstitzttio~za Z Historycustody of the temporalities of bishops, the first-fruits andtenths, and some minor matters. Next come the rents of thedemesne lands, the profits of tenure, wardships and marriages(abolished at the Restoration), also the prerogatives of purveyanceand preemption (abolished at the same time), theprofits of the royal forests ; the profits of the king's ordinarycourts of justice, fines, forfeitures, amercements ; royal fish ;wreck of the sea ; royal mines ; treasure trove; waifs, estrays,deodands, escheats, idiots. Many of these sources of incomemust always have been trifling, others became trifling in courseof time, but still in the seventeenth century the king had aconsiderable revenue which was all his own ; he required nogrant from parliament to help him to this, and to dictateto him how he should spend this would have been a strongmeasure; in such case he might plausibly have complainedthat he was treated more harshly than the meanest of hissubjects, who would be suffered to spend his own income inhis own way. The crown lands were still of considerablevalue and much profit could be made of the feudal rights, alsoof purveyance and preemption.Now at the Restoration the most profitable sources of thishereditary revenue were abolished. You will have been accustomedto consider the abolitionaf the military tenures asan incident in the history of the law of real property. It isfar more than this: it is a great event in the history of theroyal and national revenue. It was necessary to compensatethe king for the loss of income that he was to sustain ; ' andnow,'says the act, 'to the intent and purpose that his Majestyhis heirs and successors may receive a full and ample recompenceand satisfaction' for the abolished rights, 'be it enactedthat there shall be paid to the king's Majesty his heirs andsuccessors for ever hereafter in recompense as aforesaid' therates and duties following. The act then imposes certainexcise duties on beer, cider, spirits and so forth. Now thisis the hereditary excise, given to the king, his heirs and successorsfor ever as a valuable consideration for abolition ofthe military tenures. This then gave to the king a sourceof ordinary and hereditary revenue consisting of a tax. Alsoit imposed a perpetual tax, and this was a new thing. TheOrigi~z of the Civil Listindirect taxes, the customs, tonnage and poundage had indeedbeen granted to the king for life from the time of Henry VIIto that of James I, but only for life; and, as you will remember,parliament had refused to grant them to Charles Ifor more than a year. The direct taxes, the subsidies, tenthsand fifteenths were granted for the occasion only.But it is not of the manner of taxation that I would atthis moment speak, but rather of the gradual separation ofwhat, using unlawyerly terms, we may call the king's privatepocket-money from the national revenue. When William I11came to the throne he had the hereditary excise, also he hadwhat remained of the old hereditary revenue. Parliamentgranted to him and Mary a further excise for their joint livesand the life of the survivor. This revenue was the king's andunappropriated. In 1695 a step was made. I think we maysay that for the first time the notion of a civil list appears onthe statute book. It is intended, says the act, that the sumof £700,000 a year shall be supplied to his majesty for theservice of his household and family, and for other necessaryexpenses alld occasions. A new tax, a tonnage and poundage,is granted to the king for his life, but it is provided that ifthe revenue arising from certain sources there mentioned,including the crown lands, many of the smaller prerogatives,the hereditary excise, the excise which William has for hislife and the tax now granted him shall in any year exceedthe L~OO,OOO, then no more than that sum is to be issuedor applied to any use or purpose without the authority ofparliament (9 and 10 Will. 111, c. 23). A somewhat differentarrangement was made in 1700, and on the accession of Annewe find again that certain sources of revenue are declared tobe for the support of her majesty's household and the honourand dignity of the crown. These are in the main such asI have lately mentioned, the old prerogative rights, the crownlands, the hereditary excise, and certain excise and customsduties which are granted to Anne during her life. A similararrangement was made on the accession of George I, but withthis addition that besides the sources of revenue thus set apartfor him, he was to have a furthp sum of £~zo,ooo for theservice of his household and family, and his necessary expenses

436 Constitutionn Z History PERIODand occasions. This sum was to come out of the produce ofcertain taxes which were to be massed together to form whatwas to be called 'the aggregate fund.' It was intended thatthe king should thus have at his command an income of£700,000. A very similar arrangement was made on theaccession of George 11, but parliament promised that the sumat his disposal should be £800,000 per annum. On the accessionof George 111 another large step was made, for theking gave up for his life the greater part of the hereditaryrevenues ~f the crown including the crown lands, many ofthe minor prerogatives and the hereditary excise. In returna sum of £800,000 was to be paid to him yearly out of 'theaggregate fund.' In 1780, however, his majesty had to cometo parliament for the payment of his debts. Parliament insistedon a more economical management of what had come tobe called his civil list revenues, and forbad him to charge themwith pensions beyond a limited amount. It divided the paymentsthat were to be made out of such revenues into eightclasses ; and we can learn from the act in question that thesewere still of a miscellaneous nature: the second consists ofthe salaries of the judges, the third of the salaries of theambassadors, the fourth of tradesmen's bills. George IV againon his accession gave up the same hereditary revenues thatGeorge I I I had given up. In return he was to have £850,000out of what had now become the Consolidated Fund. Thissum still included the salaries of judges, ambassadors, commissionersof the treasury; but there is now set apart, aswhat is to be the king's pocket-money in the narrowest sense,A60,000 per annum. William IV gave up what his brotherhad given up and he gave up somewhat more, namely thedroits of the admiralty and the droits of the crown ; in returnhe was given what seems much less, namely £f;51o,ooo perannum ; but at this time the civil list was relieved of thesalaries of judges and ambassadors. The queen again gaveup what her uncle had given up, and was to receive £385,000 ayear out of the Consolidated Fund. Besides this she wasgiven a power of granting pensions to a certain limitedamount-£1 200 in each year.I have been obliged to deal with these details in order tov Surrezder of Hereditary Revenaes 437explain what the law now is as to the hereditary revenues.If the queen were now to die the Prince of Wales wouldbecome entitled to these revenues, including the hereditaryexcise. This is curious, for the hereditary excise is not nowcollected. As an expedient for raising money, it has longsince been superseded. But when William IV died, the queenimmediately became entitled to it ; the officers of the inlandrevenue proceeded to collect it, and had not the queen consentedto give it up, it would be collected now under the actof Charles I1 which abolished the military tenures. AS amatter of fact, a few months after her accession she gaveher consent to the act settling a revenue upon her, and thatact remitted all money which had become due for the hereditaryexcise. If the Prince of Wales now came to the thronethis would happen over again : what he would be entitledto would be the hereditary revenue, including the excise-atax which would have to be collected under the provisionsof the act of 1660, 12 Car. 11, c. 24. This may well seemrather absurd. It seems as if parliament had considered thata king could not, even with parliament's concurrence, deprivehis successors of their hereditary rights, or that at all eventsit would not be fair to ask a king to do it1.Practically, then, we have come to have a king with asalary. The sum of £385,000 was to be paid yearly out ofthe Consolidated Fund for the purposes of the civil list, butthe queen has had and still has a limited power of grantingpensions payable out of the Consolidated Fund, and in consequenceof the exercise of this power the civil list paymentsnow amount to something more than £~po,ooo a year. Eventhis sum, however, is to a certain extent appropriated by theact passed on the queen's accession. Thus, for example,£1 3 1,260 is a~signed for 'salaries of her majesty's household andretired allowances.' Only £60,000 is allotted to H.M.'s privypurse, and we may say that this is the only sum paid by thenation to the queen over which she has an absolutely unfetteredpower. I do not mean that this is all that the queenRy the Civil List Act of 1901 (I Ed. VII, c, 4) the hereditary revenues wereagain directed to be paid into the Exchequer and to form part of the ConsolidatedFund.

Co~stitzctionnd Historyreceives-she holds, for instance, the Duchy of Lancaster,and has not surrendered the revenue arising from her ducalrights, and it may be that there are some minor prerogativesof the crown the revenue of which has not been surrendered :the revenue derived from the first-fruits and tenths of theclergy has long been given up (as you may read in Blackstone)to form Queen Anne's bounty for the augmentation of themaintenance of the poorer clergy. Still we have come to this,that the 'royal revenue,' using that phrase in its large sense, isnow hard on £go,ooo,ooo a year, out of which less than halfa million is devoted to the queen's civil list, and ,&~O,OOO tothe queen's privy purse. And yet to give the name royalrevenue to the whole ninety millions is not foolish. All of itis granted by parliament to the queen, though appropriatedto particular services ; none of it comes out of the Exchequerwithout a warrant under the queen's sign manual1.Let us now take a brief view of the legal aspect of thenational finance at the present day. We have to considerhow this large revenue of £go,ooo,ooo is obtained, and how itis spent. First a few words about the Consolidated Fund andabout the National Debt. Back in the Middle Ages we findour kings large borrowers ; they pledge, or profess to pledge,what they can; sometimes the proceeds of taxes not yetcollected, sometimes the crown lands, sometimes the crownjewels ; in the days of Edward I and Edward I1 some of thetaxes are farmed by Italian merchants. Practically in theend the nation has to pay; this is one of the king's expedientsof practically forcing parliament to grant him money; hisdebts must be paid, or his credit arnong foreigners will beruined. Under Henry VIII parliament does a scandalousthing: it declares that the king need not pay his debts. At alltimes it is difficult enough to get money from the king--onecannot sue him. A flagrant case occurs under Charles 11.The London goldsmiths (the goldsmiths of those days wereThe revenue raised in 1905-6 was over 144 millions. By the Civil List Actof 1901 (I Ed. VII, c. 4) the Civil List was fixed at £.+70,ooo appropriated asfollows: Privy Purse £1 ~o,ooo; Salaries of Householcl £125,800; Expenses ofHousehold £193,000 ; Works A20,ooo ; Royal Bounty, Alms and SpecialServices £13,200; Unappropriated ~8000.The Arationnd Debtalso the bankers) had lent Charles about £13,000, and he hadpledged for the repayment of this sum part of his revenue.Suddenly the Exchequer was shut against them. It was notconvenient to pay them their principal; they must be contentwith the interest. Perpetual annuities were granted to themand charged on the hereditary excise. The annuities werepaid for four years and then further payment ceased. Evenwhen William and Mary had come to the throne it wasextremely doubtful whether these bankers had any remedyexcept by petition of right, and to that remedy they couldnot come except by the king's fiat. Thus it was evidentenough that if money was to be borrowed for nationalpurposes upon good security, that security must be somethingother than the king's word, or the king's letters patent.In 1692 there was pressing need for a large sum for theFrench war, and in that year it is usual to date the foundationof a national debt, a debt contracted upon the security of actof parliament. A million was to be borrowed. New dutieswere to be imposed for ninety-nine years upon beer and otherliquors. These duties when collected were to be brought intothe Exchequer to a separate account and were to form a fundfor paying annuities to the creditors. Life annuities were tobe granted ; each subscriber of £100 was to have an annuityof £10 (which was to be reduced to £7 in 1700) for life.But there was an element of gambling in the transaction ; asthe annuitants died their annuities were to be divided amongthe survivors until only seven should be left ; after that whateverfell in was to be for the use of the king. The actdirected the officers of the Exchequer to pay the annuitiesout of the produce of the tax devoted to this purpose, gavean action for treble damages against any officer who disobeyedthe act; so the creditor would lend no longer uponthe security of the king's word, but upon the security of anact of parliament. You will observe that only a particularfund was pledged, not the revenue in general, only certainexcise duties. You will observe also that the lenders werenot to see their principal again : iqstead of this they took lifeannuities with a benefit of survivorship.Now it is not for us to trace the growth of the national

Co~stittttionad Historydebt ; enough that it grew rapidly ; at the accession of Anneit amounted to above 16 millions, at that of George I toabove 54 millions, at the Peace of Paris in 1763 to above138 millions. During the peace it fell to 128 millions, duringthe American War it grew to 249 millions ; in 1817 after ourlong wars with France it was above 840 millions ; it has sincebeen reduced to a little below 698 millions1. But during theearlier part of the ~eriod, over which I have just ranged, itwould be more correct to speak of the national debts thanof the national debt. We have seen that in 1692 certainspecific taxes, excise duties, were imposed, and their producewas charged with the payment of certain annuities. Thisdevice was repeated over and over again in a manner mostperplexing to anyone who goes to the statute book for hisinformation. Often the return given to the lender took theform of a perpetual annuity, payable to him, his executors,administrators, or assignees, but redeemable at any time?In 1752 (25 Geo. 11, cap. 27) two great masses of annuitiescharged upon various taxes were consolidated with theconsent of the proprietors; the taxes on which they werecharged were to be carried to a common fund, and thesevarious annuities were to be paid out of it. The annuitiesthus consolidated came to be known as the consolidated 3 "1,bank annuities, and the consolidated 3+ "lo bank annuities.Other measures towards simplifying finance were takenat various times: thus the prbduce of certain taxes wasbrought into one fund known as the aggregate fund; butstill the whole matter was enormously complicated until 1787(27 Geo. 111, C. 13), when a very great act (very great inevery sense) was passed; a very large part of the revenuehad been raised by indirect taxes, customs duties and exciseduties, which were levied under a vast multitude of acts ofparliament; these were swept away and new duties wereimposed in their place. But all or most of the old dutieshad been pledged for the payment of annuities; it becamenecessary to provide for these. The whole produce of the1 In 1912 the Net Debt 3tod at &f;718,~06,~a&a See for instance 1% Geo. I, c a.The Consolidated Fztnn!new taxes, the revenues of the crown lands (which George I I I,as you will remember, had surrendered), the revenue of thePost Office, in short, I believe that I am right in saying, almostall that could be called royal revenue was to be brought intoone consolidated fund, and out of this the various annuitantswere to be paid. Since that time the Consolidated Fund hasbeen the central point of English finance; whatever is receivedin the way of royal revenue forms part of that fund, andstatutes direct how the annuities which are held by the publiccreditors shall be paid out of that fund. A similar measurewas taken in Ireland, and in 1816 the Consolidated Fund ofGreat Britain and the Consolidated Fund of Ireland wereconsolidated into the Consolidated Fund of Great Britainand Ireland.The Consolidated Fund of Great Britain is then thepublic revenue or royal revenue of Great Britain, as collectedunder the laws in force for the time being. No creditor,therefore, of the nation can say that he has any legal interestin this or that mode of taxation. Taxes, as we know, arefrequently readjusted-an old duty is abolished-this is nobreach of faith ; he trusts that parliame~lt will always keepsufficient taxes imposed for the payment of his annuity; hetrusts that parliament will not repeal (or, if it repeals, willsubstantially re-enact) the laws which direct that his annuityshall be paid out of the Consolidated Fund for the time being.The greater part of our national debt consists of perpetualbut redeemable annuities. The person who had £1000 consolswas entitled to be paid £30 per annum for ever ; he was notentitled to be paid A~ooo; but the queen had power at anytime to redeem the annuity by paying him ,&~~oo--to redeemthe debt at par. The full title of what we briefly call A~oooconsols is a sum of £1000 consolidated 3 "1, bank annuities.It was this power of redemption which enabled the Chancellorof the Exchequer in 1888 to reduce (as we say) the intereston the national debt; he could say to the holders of theseannuities 'We shall redeem you by paying you off at par, or ifyou prefer it you can have certain new annuities which willbring you in 2f "1, instead of 3 ",I,.' These are 'bank' annuitiesbecause the Bank of England is charged with the business of

Cotzstitz~tionad Historypaying them, and they are transferable by entry in bookskept by the bank. Of the Bank of England I should like tosay more, but can only say this, that though it is a bankingcorporation composed of private individuals, so that you orI inight be lucky enough to be members of it, still its positionis unique. In return for extremely valuable privileges grantedto it by charter and acts of parliament it has come under alarge number of public duties. The same may be said of theHank of Ireland. Our government banks with tliese banks.The various commissioners who are charged with the duty ofcollecting the taxes, pay what they collect into an account atthese banks called 'The account of Her Majesty's Exchequer.'Sums sufficient to meet the payments becoming due from theConsolidated Fund to the national creditors are drawn fromthis account and paid to the chief cashier, who is bound tosee to the payment. This operation involves the action ofthe Treasury and of the Co~nptroller and Auditor-General,but no act of parliament, no vote of the House of Commons,is required.A word of explanation as to the terms funded and unfundeddebt. Debt is funded when the indebted nation is notunder any obligation to pay the principal of the debt, but ismerely bound to pay the interest for ever, or until it choosesto pay the debt. The marl who has £100 of our debt hasno right to LIW in cash; he has a right to £2. 15s. perannum for ever, subject to the nation's right to pay himAIW and so extinguish his annuity. The holder is liableto be paid off at a year's notice. *Any vote or resolution ofthe House of Commons signified by the Speaker in writinginserted in the Lo~zdon Gazette and affixed on the RoyaIExchange in London, shall be deemed sufficient notice. Rutbesides the funded debt there is always a certain amount ofunfunded debt. Money is borrowed upon what are calledexchequer bills for short and definite times, and under thesethe creditor is entitled to receive his principal at a certaintime and meanwhile to receive interest.Now let us look at the revenue which forms the ConsolidatedFund. It is hard on ninety millions. By far thegreater part of it consists of the produce of taxes and govern-The l'Vntiomd Revenuement monopolies. Less than half-a-million comes from thecrown lands; there are the dividends on shares in the SuezCanal, and there are certain miscellaneous receipts ; but thegreat sources of revenue are taxes and monopolies. I say'and monopolies,' for about ~g,ooo,ooo come from the PostOffice, and the Post Office, as our Cambridge colleges havelately been reminded, has a monopoly of carrying letters.The great heads of revenue are customs producing abouttwenty millions, excise twenty-five millions, stamps twelvemillions, income-tax twelve millions, house-tax and land-taxnear three millions1. Now by far the greater part of this largesum is raised under permanent acts of parliament. It requiresno annual act. If parliament had not sat this year it wouldstill have been levied. If you take up any recent volume ofstatutes you will find that only a small part of the existingburden of taxation is imposed by anything in that book. Ithink that at present there are only two taxes which wouldcome to an end if an act of parliament did not reimpose them,namely, the income-tax and a duty on tea. All the taxingthat parliament now does in any one year is generally done bya single act. I have the act of 1885 before me. It is a shortact. It continues for one year a custon~s duty on tea at therate of 6d. per lb. It makes a few alterations in the permanentexcise duties. It imposes the income-tax for one year at therate of 8d. in the pound. It imposes an entirely new taxupon the property of corporations. All this can be done bya few brief sections. The machinery for collecting taxes ispermanent. There are commissioners of customs at the headof one department, commissioners of inland revenue at thehead of another; the manner in which taxes are to be assessedand collected, the duties of excise officers and customs officersare set forth in permanent acts. It is a simple thing to saythat for yet another year a customs duty of 6d. per Ib. shallbe charged on tea ; that the income-tax shall be levied atthis or that rate. But what it is most desirable to understand1 Nearly r+g millions was raised for the financial year, 1907-8. The chiefheads of revenue (in millions) were : Customs 32 ; Excise 30; Stamps 72; IncomeTax 31 ; Estate Duty 14; Post Office 17 ; House Duty and Land-tax 2:; Telegraph

is that parliament does not annually vote the taxes. Ifparliament never sat again, still under acts of parliamentnow in force a great quantity of taxes would be collected;the commissioners of inland revenue, the commissioners ofcustoms, the postmaster-general, would continue to pay in vastsums of money to the account of her majesty's exchequer.And money would flow out of the Exchequer also, to theamount of something like twenty-five millions a year1. Underpermanent acts of parliament certain payments become duefrom the Consolidated Fund, and there are officers chargedwith the duty of seeing that these are paid. By &r thegreatest item here consists of the interest on the nationaldebt ; this would be paid though parliament never sat ; thenthere is the queen's civil list, and a mass of judicial and othersalaries which parliament has made permanently payable. Ithas been thought undesirable that the question whetherMr Justice A.B., or the comptroller and auditor-general, shallbe paid his salary, should be annually submitted to a vote.On the other hand it has been the policy of late years not tocharge upon the Consolidated Fund the salary of any executiveofficer or the cost of any government office, but to bring allsuch matters annually under the review of parliament.No payment can be made out of the Consolidated Fundwithout the authority of an act of parliament. Some payments,as we have just seen, including the large item of interest onthe debt, are provided for by permanent acts. And now asto other payments. These are provided for by acts whichgrant supply to the queen, and then appropriate the supplyso granted. The form of a supply act is this: 'We, yourMajesty's most dutiful and royal subjects, the Commonsof the United Kingdom of Great Britain and Ireland, inParliament assembled, towards making good the supply whichwe have cheerfully granted to your Majesty in this session ofParliament, have resolved to grant to your Majesty the sumhereinafter mentioned, and do therefore humbly beseech yourMajesty that it may be enacted, and be it enacted by theQueen's most Excellent Majesty by and with the consent andadvice of the Lords Spiritual and Temporal and Commons in1 Now (1913) over 36 millions.The A+$ro$rktiopzActthis present Parliament assembled, and by the authority ofthe same as follows: The Commissioners of her Majesty'sTreasury for the time being may issue out of the ConsolidatedFund and apply towards making good the supply granted toher Majesty for the service of the year ending 31 March, 1886,the sum of £45,361,227.' The appropriation clause takes thisform: 'All sums granted by this act are appropriated forthe purposes and services expressed in the schedule annexedhereto.' Turning to the schedule we find that the appropriationis pretty minute. There are sums great and small. Theseare instances :For wages, etc., to 59,000 seamen and marines.. . ,&z,7~8,100For the expense of dockyards and naval yardsat home and abroad ... ... . .. £1,639,300For the volunteer corps' pay and allowances ...For the maintenance and repair of MarlboroughHouse ... ... ... ... ... £7,120For the cost of erecting a monument to the late,&606,oooMajor-General Charles George Gordon ... £500For her majesty's foreign and other secret services &~O,OOONow observe first that this is supply granted to the queen;none of it will go out of the Exchequer without the signmanual, and the warrant of the Commissioners of the Treasury.Parliament does not grant money to the seamen and marines,or to the sculptor who makes a monument to General Gordon.Of course all this might be done, but it is not done; it isthought very undesirable that it should be done. Money isgranted to the queen ; it is placed at the disposal of her andher ministers. But she and they are not bound by law tospend it, at least not bound by the Appropriation Act. Ofcourse if the queen's advisers withdrew all ambassadors fromforeign courts, or disbanded the navy or the like, they mightbe severely blamed and possibly they might be impeached.But statute does not say to the queen 'You shall spend somuch on your embassies, so much on your navy.' Rather itslanguage is : ' Here is money for this purpose and for that;spend it if you please; we trust the discretion of youradvisers ; the account of the expenditure will be presented

Constitutional Historyto us, and votes of censure may follow. This, however, appliesonly to expenditure within the limits laid down by the act:here is two and a quarter millions for warlike stores, £roo,ooofor the royal parks, one hundred guineas for expenses connectedwith the observation of the transit of Venus ; if moreis drawn out for any of these purposes, someone will havecommitted a crime, indeed in all probability several personswill have conspired to commit a crime'.' I may here remarkthat soldiers, sailors, and civil servants are servants of thequeen and of no one else, generally dismissible at a moment'snotice and without cause assigned. The pay, salaries, pensions,for which they serve, are paid to them on behalf of the queen,and at least in general they can bring no action for their payagainst the queen's ministers; the contract is with the queen,and the remedy on it is a petition of right. The fact thatparliament has voted a supply to the queen for the paymentof such salaries or pensions does not give them a remedyagainst the lords of the treasury or the secretaries of statewho are charged with the expenditure. No one can say,' Under the Appropriation Act, the secretary of state for \tzar,or the lords of the admiralty, have received money which theyhold upon trust for me.'In speaking of the grant and appropriation of suppliesI have somewhat unduly simplified the course of busi~iess.Only one Appropriation Act is passed in each year, and thatnear the end of the session; that provides for the wholeestimated expenditure of the then current year. But beforethe whole of the estimates can be considered it often isnecessary that the queen should have money. Early in thesession the House of Commons forms itself into a committeeof supply and begins going through the estimates. Theminister in charge of the business proposes grants one byone, as, for instance, that a sum not exceeding &IO,OOO begranted to her majesty for the object specified in the estimate.1 This is en~phasized by a now usnal clause, which empowers the treasury incase of necessity to use money appropriated to one military purpose for anothermilitary purpose. In 1883-4 advantage was taken of this; an act of 188j declaresthat what was done was lawful.. On the other hand even at a pinch moneyappropriated to the navy cannot be applied to the army. F.W. M.v Method of voti~zg Szq5yVies 447The House also forms itself into a committee of ways andmeans and therein considers how the supply thus voted shallbe raised : it votes that so much money be granted out of theConsolidated Fund towards making good the supply votedto her majesty. This resolution is then embodied in a billpassed early in the session. For instance I take up the statutesof 1885. On the 28th of March an act obtains the royalassent; it states that the Commons towards making good thesupply voted to Her Majesty have granted the sum hereinaftermentioned, and that it is enacted by Queen and Parliamentthat the Commissioners of the Treasury may issue out of theConsolidated Fund and apply towards making good the supplyvoted to Her Majesty for the year ending 3 I March, 1886, asum of ten millions odd. The act contains no further wordsof appropriation ; merely says that the Commissioners of theTreasury may apply this sum towards making good the supplythat has been voted: this supply however has been voted, asI have already described, for specific purposes. On 21 Mayanother act of the same kind is passed granting anotherthirteen millions. On 14 August we have the AppropriationAct. It grants another forty-five millions. Then it proceedsto appropriate the whole of these three sums of ten, thirteen,forty-five millions, and it appropriates them'retrospectively. Itsays that all sums granted by the two acts of March and May,and the present act, are appropriated and shall be deemed tohave been appropriated as from the date of the passing ofthe first of those acts, for the purposes expressed in theschedule to the present act. This, however, is rather a detailof business.E. The MiIitnry System.We have traced the legal history of our military systemdown to the reign of William 111. From that time onward itbecomes the history of an act passed in every year-knownas the Annual Mutiny Act-an act legalizing the existence ofa standing army consisting of a certain specified number ofmen for one year more. Tlle practice of passing a wholeMutiny Act in every year was continued until 1879. In that

Constitutional Historyyear an act of a different kind was passed and in 1881 a newedition of this act was passed. This act of 1881-the ArmyAct of 1881-now governs the army. But it is an act of avery peculiar character-it always requires another act tokeep it in force-and in every session of parliame~lt a briefact is passed renewing the act of 1881. This was but achange in parliamentary procedure, the principle is still preservedthat the army shall be legalized only from year toyear.I have said that the legal history of the British armyfrom the days of William I11 to the present time is chieflythe history of these annual mutiny acts. We sometimes talkabout the Mutiny Act being re-enacted, but do not be deceivedby this into thinking that the same act was passed year afteryear. The acts grow and grow in bulk, and become alwaysminuter and more precise. The first Mutiny Act is a triflinglittle thing. I think that I have stated to you the whole ofits sum and substance. The act of 1881 is a vast code, has193 sections and takes up more than 60 octavo pages. Nowto trace this process of growth would take a very long time;I can only ask your attention to a few salient points. In thefirst place we always have the solemn recitals 'Whereas thekeeping of a standing army in time of peace within the UnitedKingdom of Great Britain and Ireland without the consent ofparliament is against law,' 'And whereas no man can beforejudged of life and limb, or subjected in time of peace toany kind of punishment within this realm by martial law, orin any other manner than by the judgment of his peers andaccording to the known and established laws of the realm.'The words 'in time of peace' in this last recital were not inthe earliest mutiny acts ; their presence certainly seems tosuggest that in time of war the subjects of this realm mightbe punished by something called martial law. That is apoint to which I shall return. As to the judgment of one'speers, that I think has become sorry old nonsense. A subjectof this realm can be sent to prison by one stipendiarymagistrate-I fail to see how he gets the judgment of hispeers in any sense in which he would not get it were he triedby court martial.The Army ActThen the modern acts specify the precise number ofsoldiers that may be kept. It is adjudged necessary by thequeen and parliament that a body of forces should becontinued for the safety of the United Kingdom and thedefence of the possessions of Her Majesty's Crown and thatthe whole number of such forces should consist of 142,194men. The queen, I take it, is not in the least bound to keepthat number ; it is a maximum.Next we will notice that the act expressly empowers thequeen to make Articles of War for the better government ofofficers and soldiers. The act does not constitute by anymeans the whole of our military code-there is besides alarge body of Articles of War. If you wish for an example(I have before this mentioned others) of delegated legislativepowers I know of no better than this-for the queen isempowered to legislate for the better government of officersand soldiers and she can create new offences. But the actgoes on to mark the limit. No person by such articles is tobe subject to any punishment extending to life or limb, orto be kept in penal servitude, except for crimes which areby this act expressly made subject to such punishment asaforesaid or be subject, with reference to any crimes madepunishable by this act, to be punished in any manner whichdoes not accord with the provisions of this act. Now probablythere is a certain (or I had better say uncertain) prerogativepower for making articles for the government of the army.The earlier Mutiny Acts only deal with mutiny and similarcrimes, crimes which they punish with death, but during thereigns of William and Anne Articles of War were issueddealing with minor offences, and the legality of these seemsto have been admitted by parliament. What the limit to theprerogative power was supposed to be I am not certain,probably life and limb. Historically, as it seems to me, thereare difficulties in drawing any line. The annual acts protestedthat no man should be subjected to any kind of punishmentby martial law-if the king could order that drunkards beflogged, why not that mutineers be hanged? In the act of3 George I, however, the king was expressly empowered tomake articles for the better government of his forces as well

Constitutional Historywithin the realm as without, and to inflict pains and penaltiesto be pronounced by courts martial. This became, I believe,a standing clause in the act. Gradually parliament expresslydealt with more and more offences, going always into smallerdetails, and thus in effect the scope of Articles of War waslimited-for it was established as early as 1728 that the kingcould not impose by articles a graver punishment than thatwhich the Mutiny Act had imposed. Also the king wasadvised by his law officers in I727 that he could not commutethe sentence pronounced by a court martial under the act-could not substitute flogging for death.Now though an express power of making articles is givenby the annual acts this would not take away any previouslyexisting prerogative ; so, on the whole, we ought probably tobelieve that when parliament has legalized a standing army,has said that the queen may keep soldiers in her pay, she has,if nothing more be said, a power of making regulations fortheir government, a power extending to the denunciationof punishments short of life and limb. The modern acts,however, give her expressly a power which is more limited ;her articles may not inflict penal servitude or vary the punishmentsfor the many offences for which the act itself provides.As to what these offences are I cannot go into manyparticulars. There are a considerable number of offences forwhich death may be inflicted. For instance, anyone who' misbehaves or induces others to misbehave before the enemyin such a manner as to show cowardice ' may be sentenced todeath. Some offences there are which are punishable withdeath if committed while on active service, but are not sopunishable if committed in other circumstances. Desertionis a case in point; anyone who, while on active service,deserts or attempts to desert can be sentenced to death.Anyone who deserts while ndt on active service can get noseverer punishment than imprisonment. As to disobediencethe rules are these : he who disobeys, in such a manner as toshow a wilful defiance of authority, any lawful command givenpersonally by his superior officer in the execution of his office,is liable to suffer death; he who disobeys any lawful commandgiven by his superior officer is liable, if he commits the offenceLegal Position of Soldierswhile on active service, to penal servitude, if otherwise toimprisonment. The punishments which can be inflicted aredeath, penal servitude for five years, imprisonment for twoyears, for officers cashiering, for soldiers discharge withignominy, forfeiture, fines, stoppages. Flogging has latelydisappeared ; a maximum punishment of 300 lashes was fixedin I 8 I 2, of 200 lashes in I 832, in I 867 it was confined to a fewoffences, in 1868 it was abolished altogether in time of peace.In the act of I 879 it appears for the last time-25 lashes maybe inflicted for certain offences if committed on active service.It is not to be found in the act of 1881.Hitherto we have been dealing with what we may callmilitary offences. Now as to other offences, crimes againstthe general law of the land, the policy of these acts has fora long time past been not to exempt the soldier from theordinary rules and the ordinary processes of the law. Youmay have noticed this when I was speaking of the first of allthe Mutiny Acts. The principle is laid down broadly in whatis now the standing act. 'A person subject to military lamwhen in his majesty's dominions, may be tried by anycompetent civil court for any offence for which he would betriable if he were not subject to military law.' What is more,he can seldom be tried by court martial for an offence againstthe ordinary civil law-never within the United Kingdom ; butoutside the United Kingdom, and if more than a hundred milesfrom any town in which there is a competent civil court, hemay be tried for treason, treason-felony, murder, manslaughteror rape. When the jurisdictions of courts martial and ordinarycourts overlap, the fact that the offender has been punishedunder the military law is no bar to criminal proceedingsagainst him, but the court is ordered to take his previousmilitary punishment into consideratio11 when awarding sentence.As regards debts and other civil causes of action, onecan sue a soldier and have execution against his property, buthis person is exempt unless the sum due be above £30. Thisdoes not mean very much, now that imprisonment for debthas been abolished.The act contains elaborate rules as to the constitutionof courts martial ; their procedure is for the most part left

to regulations made by the queen and signed by a secretaryof state. The act, however, provides how a prisoner maychallenge his judges, and provides also that the ordinaryEnglish rules of evidence shall be observed.One great branch of the act then deals with these mattersand the like. It enacts a military penal code, and providesspecial courts for enforcing that cod?. Another large branchdeals with billeting and the impressment of carriages. Billetinghas been found necessary, and year by year the sectionabout it in the Petition of Right is solemnly suspended. Butthe burden is not, I think, very heavy. Soldiers can onlybe billeted on those whom, roughly speaking, one may callkeepers of public-houses-victualling houses is the statutoryword. The prices to be paid for accommodation are fixedfrom time to time by parliament, and the act goes into detail;indeed it chronicles small beer, for not more than two pintsthereof need be provided for any soldier per diem. So carriages,carts, horses may be impressed for the transport of regimentalbaggage, all to be practically paid for at parliamentary rates.There is a third great branch of the act which deals withenlistment. Now parliament for a long time left the king tomake what terms he pleased with his soldiers. Gradually,however, clauses as to enlistment make their way into theMutiny Acts. Their object was to provide that the recruitshould really understand what he was about, and not sellhimself half-drunk into a life-long service. Similar clausesappear still ; the recruit must be taken before a justice of thepeace, sign a declaration and so forth. But of late parliamenthas interfered with the terms of the enlistment in order tocarry out a policy of short service. The act of 1881 saysthat a person may be enlisted for a period of twelve years, orfor such less period as may be from time to time fixed by thequeen, but not for any longer period. There are also clausesproviding for passing men in@ the reserve. This reserve ' itshall be lawful for Her Majesty in council ' to call out, ' in caseof imminent national danger or of great emergency by proclamation,the occasion being first communicated to parliamentif parliament -be then sitting, or if parliament be not thensitting, declared by the proclamation.' But though the soldierengages for a term of years, the queen is not bound to keephim for that term, he can always be dismissed without causeassigned; this applies to all officers and soldiers alike from thegeneral commanding in chief downwards.It is, I believe, a common mistake that since the Revolutionwe have no such thing as impressment or conscription for thearmy. Of course no permanent law provided for it, becausethere was no permanent law for the army. Also it is true thatthis means of raising a force was only made lawful in times ofwar, and was applied in a limited way. But in the first place itwas at times applied to insolvent debtors. Imprisoned debtorswere discharged on condition of their enlisting or finding a substitute.This seems to have been done on manyoccasions duringthe eighteenth century. Then again convicted criminals werereleased upon condition of their enlisting. This was, I believe,done until the end of the Peninsular War. Thirdly, conscriptionwas applied to the pauper class. In 1703 justices are to raiseand levy such able-bodied men as have not any lawful callingor employment, or visible means for their maintenance orsubsistence, and hand them over to the officers of the queen'sforces. Similar acts were passed during the reigns ofGeorge I1 and George 111, the persons liable to be impressedwere 'all such able-bodied, idle and disorderly persons, whocannot upon examination prove themselves to exercise andindustriously follow some lawful trade or employment, or tohave some substance sufficient for their support and maintenance.'I believe that clauses directing the impressment ofable-bodied paupers were in force until 1780. A British armyof the eighteenth century must have been largely composed ofbad characters, insolvent debtors, criminals, idle and disorderlypersons. The army was never popular; the soldiers, as aclass, were despised. For a long time past we have dependedfor supplies of men upon voluntary enlistment.Now under the acts of parliament, and within the limitswhich they set, the command, government, disposition of thearmy is in the queen. Probably it is within this militarysphere that the personal will of the king has been mostefficacious within what we may call recent times. Even tothis day a very great mass of military business is, I believe,

454 Constitutiogza Z HistoryPERIODbrought under the queen's own notice. and her sign manual isrequired for many purposes. But down to 1793 there was noCommander-in-chief, or rather the king himself really andtruly commanded the army. A general might be appointedfor a time to conduct a campaign on the continent; but thetrue head of the army was the king. What led to theappointment of a Commander-in-chief was, it seems, the usefor political ends of the king's power of appointing anddismissing officers. It was thought that in such matters heought to act on the advice of one who was primarily a soldier,and who stood outside party politics. On the other hand thedisposition, the general administration of the army has alwaysbeen falling more and more into the hands of a politicalminister, a member of parliament and of the cabinet. This isa particularly complex piece of history, and I must shirk it.Until the beginning of the Crimean War responsibility was muchdivided between a Secretary at War, who was not a Secretary ofState, and the Secretaries of State. At that time the office ofSecretary of State for War was created, and a few years afterwardsthe much older office Secretary at War was abolished.The legal necessity of his counter-signature as an authenticationof the queen's orders, even when such orders are addressedto the Commander-in-chief, secures that his advice shall betaken in all matters relating to the disposition of the forces,and he has to answer in parliament for the advice he gives.The Commander-in-chief is trusted with a large power as tothe discipline of the forces, appointment and promotion.A political minister ought not, it is thought, to interfere withthese matters ; but the highest appointments, the command inchief on foreign service, have the approval of the Secretary ofState, and in important cases become 'cabinet questions.' Asto the employment of troops in war, I believe we may safelysay that the Secretary of State must always become responsiblefor this, and that his signature is legally necessary. But therelations between the Horse Guards and the War Office aredelicate and intricate, and I cannot pretend to have studiedthem closely1.This dualism ceased when by Orders in Council of 29 Dec. 1887 and Z I Feb.1888, the whole administration of the army was centred in the Commander-in-chlef,The AiIiZditia ztnder Charles 11 455And now we must go back to the Restoration to take upthe tale of the militia. The necessity for a standing army wasdenied, thing and name were hateful, the ancient force was tobe reorganized. The Statute of Winchester was still in force,the old principle was to be revived. First, however (1662),the act recited that 'the sole and supreme power, government,command and disposition of the militia, and of all forces by seaand land is, and by the laws of England ever was the undoubtedright of his majesty and his royal predecessors, kings andqueens of England ; and that both or either of the Houses ofParliament cannot, nor ought to pretend to the same.' Nowthe original plan of this militia is something of this kind. Theking appoints a Lieutenant for each county, who with the king'sapproval appoint Deputy-Lieutenants. They at a meeting(this comes to be called a lieutenancy meeting) are to chargethe inhabitants of the county with the duty of finding men andarmour according to this scale: Anyone with a revenue of£5oo, or with £6,000 in goods, must find one horse, horseman,and armour, and so in proportion if his wealth be greater;anyone who has less than this, but has a revenue of £50 or£600 in goods, must find a foot soldier and arms. Thiscounty force the Lord-Lieutenant is to command ; the subordinateofficers are to be comlnissioned by him, unless the kingshall exercise a reserved power of making the appointments ;these officers the king can dismiss. Ordinarily the force canonly be called out for a certain very limited quantity of-.xercise in the year: once a year for four days there is ageneral muster and exercise of regiments; four times a yearfor two days at a time there may be an exercise of singlecompanies and troops. No person can be forced to serve inperson, but must send a sufficient man and pay him a certainstatutory maintenance, twelve pence per day for a foot soldier;ammunition the county must provide; if the force is calledhimself responsible to the Secretary of State for War. The authorrty of theCommander-in-chief was somewhat abridged by Orders in Council of 21 Nov.1895, and the office itself was abolished after the Boer War in 1904, when anAimy Council was created by L-tters Patent. All powers exercised under theroyal prerogative by the Secretary of State for War and the Commander-in-chiefwere transferred to the Council, which in 1908 consists of seven members includingthe Secletary of State for War and the Chief of the General Staff.

Constitutions Z Historyinto actual service the king is to pay wages, but these haveto be advanced in the first instance by the persons who arecharged to provide the men. Now the object for which thisforce can be employed is this: the Lord-Lieutenant may callit together, and in case of insurrection, rebellion, or invasion,may conduct and employ it for suppressing of all suchinsurrections, and rebellions, and repelling of invasions accordingas he shall from time to time receive directions from theking. For this purpose the force may be led into any part ofEngland, but this act 'is not to be deemed or taken to extendto the giving or declaring of any power for the transportingof any of the subjects of this realm, or any way compellingthem to march out of this kingdom, otherwise than by thelaws of England ought to be done.' A force of this kind theopinion of the day considered the proper force to protectthe kingdom against invasion and rebellion. The curiouslyaristocratic nature of the force will not escape your notice.It is to be provided by and officered by the landowners of thecounty.The statutes of Charles I1 remained the basis of themilitia law during the first half of the eighteenth century.The force which it created must have been a very clumsy andvery costly force, and despite all the grand things that weresaid of it, it hardly became an effective institution. In 1757(30 Geo. 11, c. 25) all the earlier statutes were swept away, andthe force was reorganized-there was fear of a French invasion.All men between eighteen and fifty, except certain speciallyexempted classes, are liable to serve, or to find substituteswho will serve as privates in the militia. The quota, however,of men for each county is fixed by statute ; thus for Huntingdonshireit is 320, for Middlesex 1,600. This requisite quotais to be obtained in each county by ballot. Within the countythe apportioning of numbers, first to hundreds (or lieutenancysub-divisions) and then to parishes, is accomplished by theLieutenant and Deputy-Lieutenants at lieutenancy meetings,and they look after the ballot. A man drawn in the ballotor his substitute must serve for three years: the amount ofexercise that can be required of him is minutely defined. Incase of actual invasion or immindht danger thereof, or in caseThe Militia from 1757 to 1852of rebellion, the king (notifying the occasion to parliament ifparliament be then sitting) can draw out and embody all themilitia, and place them under general officers. The force canthen be obliged to serve in any part of the kingdom. Whenthe militia is thus embodied, the militiaman is to receive thepay of a regular soldier, and will come under the Mutiny Actand the Articles of War. No provision was made for the payof the militia during training and exercise. This was anintentional omission, it made necessary an annual act for payand clothing, and thus gave the House of Commons a controlsimilar to that which it had over the regular army. Thepower oi the crown in the appointment of officers was somewhatincreased, but an officer was to have a fairly highproperty qualification-Lso a year for an ensign, £200 for acaptain, and so forth.In 1786 again a clean sweep was made by 26 Geo. 111,c. 107; this is a long and intricate militia code of 136 sections.The general plan of the force, however, remains that settled in1757. This again gave way in 1802 to a new code of 178sections. I can only say that the plan remains much thesame. Very rarely indeed had the militia been drawn outand embodied. It was embodied during the Seven Years' War,again between 1778 and 1783, again between 1792 and 1803.Each embodiment is marked by a new code. In 1815 an actwas passed empowering the king to embody it because of thewar with France. A profound peace followed. The ballotwas suspended, and I believe that even the annual exercising ofvoluntarily enlisted militiamen was very generally suspended.Then in 1852 there was a new terror, and consequently a newact. It did not sweep away the previous acts, indeed the actof 1802 is still, to a considerable extent, the basis of the law.It endeavoured to make the militia a more flexible andserviceable force. The number of men is fixed at 80,000, butin case of actual invasion or imminent danger thereof thequeen may direct that 40,000 more be raised In this caseshe must first communicate the reason to parliament, if therebe a parliament sitting ; if parliament be prorogued she mustsummon it to meet within fourteen days-that, by the way,is a case in which statute orders the queen to call parliament

Cblzst itutionnl Historytogether. The quotas for the counties are now to be fixed byOrder in Council ; the numbers are to be raised by voluntaryenlistment, but if this fails to produce the requisite total, thenthe ballot is to be resorted to. In the main the old law as tothe obligation to serve or find a substitute is kept on foot. Thewhole, or part of the force, can be exercised for twenty-onedays in a year. By Order in Council, however, the time maybe extended to fifty-six days; by similar means the countyforce can, if necessary, be exercised out of its county. Thelaw as to embodying the militia for actual service remainsmuch as before. Many alterations are made as to theappointment and qualification of officers, tending to give thecommissions rather to real s~ldiers than to the landed gentry.However, the ballot really remained in suspense. It wassuspended by an act of 1829 for a year, and I believe that itthen became the practice to pass a similar act in every year.In 1865 an act of this kind was passed, and since then thepractice has been to include the act of 1865, which suspendedthe ballot, in the Expiring Laws Continuance Act. But evenwhile that act remains in force the ballot may be introducedby Order in Council. This was aciually done in 1830, and theballoting clauses remained in play until February, 1832. Ibelieve that since then there has been no ballot. The bountiesand pay are high enough to procure what is considered asufficient number of men.There have been a great many more changes, culminatingin an important Consolidation Act of 1882 (45 and 46 Vic.,c. 49). Briefly the result is this: all the duties and powersof the Lords-Lieutenant, over or in relation to the militia, aretaken from them. These are now exerciseable by the queenthrough a Secretary of State, or any officers to whom thequeen may, by the advice of a Secretary of State, delegate suchduties or powers. The officers are commissioned directly bythe queen, but the Lieutenants have still a certain power ofrecommending for first appointments. There is now nopermanent statute fixing the number of the militia. It islawful for her majesty to raise and keep up a militia consistingof such number of men as may from time to time be providedby parliament. Militiamen are to be enlisted voluntarily forsome term not longer than six years. They go through sixmonths' preliminary training ; then they are liable each yearto be exercised for twenty-eight days, but by Order in Councilthis can be extended to fifty-six. The force can be embodiedfor actual service by Royal Proclamation in case of imminentnational danger or great emergency. In that case, if parliamentbe prorogued, it must be summoned to meet withinten days; the force can then be kept embodied until the queendisembodies it by proclamation. It can be sent into any partof the United Kingdom, but not out of it ; though with theirown consent the men may be sent to Gibraltar or Malta. Aswell when they are training, as when they are embodied, theofficers and men are under the Mutiny Act.As you will see, the militia while keeping its name has byslow degrees-every step can be traced on the statute bookbecomesomething utterly different from what it was in theseventeenth, even in the eighteenth century. In truth it is verylike a second standing army. Owing to the fact that Englandis an island, we have never taken kindly to compulsory militaryservice; the consequence is that we have two professionalarmies. The old ballot clauses of 1802 are still hanging overour heads, but they would be rusty machinery for the presentday. The militia is now quite as much under the control ofthe crown as is the regular army. The Lord-Lieutenant hasceased to be a military officer, the militia has now but little todo with any organization of the county1.1 Under the Territorial and Reselve Forces Act of 1907 (7 Ed. VII, c. 9)County Associations were establ~shed for the purpose of rarsing a Territorial Forcefor home defence. Under Pt 111, § 33 of the Act the Army Council was empoweredto form Special Reservists into regiments, battalions and other militarybodies, as provided in the Reserve Forces Act of 1882. The old Militia Battalionsdo not form part of the Territorial Force, and are quite independent of the CountyAssociations. They form 'Special Reserve Battalions' of the Line regiments towhich they severally belong and are liahle to active service with the regularBattalions whenever and wherever required. Their officers are 'Special ReserveOfficers' of the regular army. The old Militia therefore has ceased to exist inname, In fact and in law, for though with the exception of twenty-three suppressedBattalions, the old Militia Battalions have been transferred to the new ' SpecialReserve,' they are no longer liable only for service in the United Kingdom andIreland, nor are they enlisted on the old Milltia basis. The Volunteer TerritorialForce (whlch includes Yeomanry and Volunteers) is more akin to the ancient

Constitutional HistoryThe treatment which the navy has received at the handsof parliament has been curiously different from that of thearmy. While the statute book bristles with acts about thearmy, acts about the navy are very few. I can only noticea very few points.In the first place it has not been asserted that the maintenanceof a standing navy even in time of peace, withoutthe consent of parliament, is against law. In point of factparliament has long since acquired just as much power overthe navy as over the army. This power has been(acquired bymeans of appropriation acts. In 1885, for example, a sum of2Q millions odd was appropriated for the wages, etc. of 59,000seamen and marines, so much for victuals and clothing, somuch for the expenses of dockyards, and so forth. This haspractically obliged the king to have in parliament a ministerwho will state the needs of the navy, and the manner in whichmoney is spent. Rut no act of parliament is necessary tolegalize the very existence of a royal navy. As to discipline:this was long regulated by a statute made immediately afterthe Restoration (13 Car. 11, c. g). This having been severaltimes amended was replaced by an act of 1749 (22 Geo. 11,c. 33). This code, with some amendments, remained in forceuntil 1860, when it was replaced by another. The act now inforce is the Naval Discipline Act of 1866 (29 and 30 Vic.,c. log). It covers much the same ground as the act whichregulates the discipline of the army: defines offences andimposes punishments. In the past there was this difference,that while the military penal code was to be found largely inArticles-of War made by the crown, ever since the Restorationthere has been a statutory naval penal code defining offencesand awarding punishments. Rut for some time past therehas really been little difference in this respect, for the ArmyActs have always been becoming more detailed and precise.The act now in force for the army expressly provides for allor most of the offences which can be considered as very serious,and so takes them out of the sphere of articles made by thefyrd. Whether or no the Ballot Act (+z George 111, c. go) could be legally put inforce to obtain men for the ' Special Reserve' or for the Terntorial Army, whoseconditions of service more resemble those of the old Militia, is very doubtful.1m.ressment for the Navyqueen. On the other hand the Naval Act has a very generalclause, which provides for the punishment of any act, disorderor neglect, to the prejudice of good order and naval disciplinenot hereinbefore specified ; and again, it provides that whenno punishment is mentioned in the act, an offence against theact may be punished according to the laws and customs insuch cases used at sea. There is, however, this difference,that the Naval Act provides for offences against the ordinarycriminal law. A sailor of the royal navy who commits murderor larceny or any other crime on sea, or on land outside theUnited Kingdom, can be tried by a court martial administeringthe ordinary criminal law of England. It is only in quiterare circumstances that a soldier can be tried by court martialfor one of the common crimes.Rut to students of the history of law the most interestingthing about the navy is impressment. The history of theword itself is very curious-doubtless pressing suggests thenotion of compulsion, physical restraint-and doubtless fora very long time past people have had this notion in theirminds when they talked about impressment, pressing sailors,the press-gang and so forth. But it is, I believe, quite wellestablished that the word originally bore a quite differentsense. In the National Debt Act of 1870 (33 and 34 Vic.,c. 71, sec. 14), one may read that the money issued for thepayment of dividends is to be paid to the chief cashier of thebank by way of imprest. It is from impraestare-think ofthe French wordpr&ter-money is imprest when it is advancedfor a specific purpose ; and ' imprest money ' was the sumadvanced or given to soldiers and mariners upon enlistment.Now the impressment of marines for the purposes of theroyal navy had been clearly recognized as legal by statutesgoing back to the reign of Richard 11. And in 1743 inRex v. Broadfoot it was contended by Sir Michael Foster, that'the right of impressing mariners for the public service is aprerogative inherent in the crown, grounded upon commonlawand recognized by many acts of Parliament.' Broadfoothad killed one of a press-gang while engaged in pressingseamen under a legal warrant executed in an illegal manner,for the warrant stated that its execution could only be

462 Constitutions Z History PERIODentrusted to a commissioned officer, and this was not done.Foster admitted that the press-gang were not acting in termsof their warrant, and so were engaged in attempting to makean illegal arrest; but he thought it well to discuss the wholesubject, and produced a long array of authority in favour ofthe legality of pressing. Afterwards both Mansfield andKenyon upheld its legality, and there can now be no doubtat all, to press sailors into his service is one of the king'sprerogatives. It has never been taken away. I cannot saywhen last it was used; it is not used in time of peace; butwe should be rash in saying that it would never be used incase of a great naval war: at any rate there the power is, andparliament has left it alone. It has been so long disused thatthere is some difficulty in saying who might be impressed.However, I believe it certain that they must in some sense besailors-they must use the sea. There is an act of I740 stillin force, which exempts persons above forty-five years of age,or below eighteen ; persons who use the sea are by the sameact exempted for two years after the beginning of their firstvoyage1.I?.Administration of Justice.It is important at the outset of legal study to have somenotion of the history of the courts and of their procedure, fora large portion of our law is not statute law, but case law-'common law' and 'equity '; and case law cannot be readunless uTe know a little of the courts.We must first dismiss with a few brief words what isperhaps the most important court held in England, because(save in some comparatively minor matters) it is not a courtfor England-the Judicial Committee of the Privy Council.The act which abolished the Court of Star Chamber didnot deprive the Privy Council of all jurisdiction. In particularz Ric. 11, stat. I, c. 4; z and 3 Phil. and Mary, c. 16; z and 3 Anne, c. 6;4 and 5 Anne, c. 19; 7 and 8 Will. 111, c. zr. For Rex v. Broadfoot, State Trials,XVIII, p. 1323 ff. For Mansfield's judgment in Rex v. Tubbs (1776) Cowper,ReporZs, 11, p. 51% ff. For Kenyon in Ex Parte Fox, State Trials, v, 276. Forthe whole subject Broom, Constitz~tional Layo, pp. I I 1-1 14. Robertson, StatutesCases and Doczments, 1). 344.v Jadiciad Committee of Privy C0z.tnci.l 463it remained the supreme Court of Appeal for all the king'slands beyond the seas. This was then a small matter; theking's lands beyond the seas were the Isle of Man, theChannel Islands, a few struggling colonies. Now it hasbecome a very great affair, as the king by cession, conquest,and colonization, has acquired new lands in every quarter ofthe globe.Until 1833 this jurisdiction was, in fact, exercised by suchmembers of the Privy Council as had held high judicial offices.In that year a committee was created by statute, consisting ofthe members who should be holding, or have held, certain highjudicial offices, and this committee was to do the judicial work.In 1871 four paid members were appointed, and they, togetherwith the Chancellor, do almost all the work of the Court.According to a scheme at present at work, these four memberswill also be the four Lords of Appeal in Ordinary, and thusthe two supreme tribunals of the empire, the Privy Counciland the House of Peers, will for practical purposes consist ofthe same members.Practicaily this committee is a court of law, but administrativeforms are in some respects maintained. Its 'judgment 'is not technically a judgment, but advice to the queen, whereuponan Order in Council is made, affirming or reversing thejudgment of the colonial court, against which appeal is made.Only one opinion is expressed-secrecy is insisted on. Thesefeatures form a curious reminder of the time when judicial andgovernmental functions were intimately blended, and the samecouncil advised the king on acts of state and judicial business.The Council does a little work for England-is the Courtof Appeal from the ecclesiastical courts-and until 1875 fromthe Court of Admiralty; but the business of the ecclesiasticalcourts has become small for a reason soon to be given.Turning to the English courts, we must first distinguishbetween civil and criminal jurisdiction-some courts haveboth jurisdictions, some only one.Now with respect to civil jurisdiction our whole judicialsystem has been recast within the nineteenth century.Let me recall the leading dates in this process :1846. Formation of new County Courts.

464 ConstitutionnZ History PERIOD1857. Transfer to new Courts of ecclesiastical jurisdictionin testamentary and matrimonial causes--(I) Court of Probate,(2) Court of Divorce.1875. Fusion of all superior courts of law and equity(except House of Lords) into a new supreme court.1876. Reformation of the House of Lords as a judicialtribunal.a. The Civil Courts. There is one court of first instancefor the whole of England, with an unlimited competence in allcivil cases-the High Court of Justice. From this an appeallies to the Court of Appeal. From this again an appeal lies tothe House of Lords. These courts are central and superior.Besides these there are some five hundred ' county courts 'which are local, inferior, and of limited competence, and fromthem an appeal lies to the High Court.First we will speak of the county courts. We have alreadyspoken of the centralization of justice and of the great workthat it did for us in the past, giving us a common law. Butowing to the decay of the old local courts this extremecentralization produced many evils. The system was toocostly and dilatory for small causes, and often amounted toan absolute denial of justice. Attempts were made to correct:this evil in the eighteenth century by the creation of pettycovrts here and there, 'courts of conscience,' or 'courts ofrequests,' before which (without trial by jury) debts mightbe recovered. But no general reform was attempted until1846, when a new system of courts was created throughoutthe land. To these new courts was transferred such remnantsof contentious jurisdiction as were possessed by the old countycourts-those county courts which played so important apart in the earlier Middle Ages. But though the new courtsare called 'county courts,' they really have little to do withthe county system. The 'old county courts' still have atheoretic existence, though not as judicial tribunals, thus thecoroners are elected in what is a county court of the old typewhich all freeholders may attend ; and I am not sure that tothis day, even with our system of vote by ballot, the membersfor a county are not supposed to be elected in what istheoretically a county court of the old type.v cou~zty courts 465These new so-called county courts have been steadilygrowing in importance. Parliament has frequently giventhem fresh powers1. They exercise a civil jurisdiction limitedin two ways-(I) by the amount at stake, (2) by geography.(I) Ordinarily (but there are some large exceptions)the amount claimed must not exceed A~o.(2) They are local courts. The defendant must (ordinarily)be sued in the court of the district within which he dwells orcarries on business.In many cases a plaintiff has a choice between thecounty court and the High Court; in some he must go tothe county court, and suitors are discouraged (by rules aboutcosts) from taking to the High Court matters which mighthave been heard in the county court.The county court is presided over by a judge ; there areabout fifty county court judges, each of whom therefore hasgenerally several districts. The judge is appointed by theLord Chancellor from among barristers of seven years' standing;he can be removed by the Chancellor for inability ormisbehaviour ; he is disqualified from practising as a barristerand from sitting in the House of Commons; his salary ischarged on the Consolidated Fund.In most cases either of the parties to the action caninsist on having a question of fact tried by a jury of eight.But trial by jury in a county court is very uncommon;generally the judge decides both fact and law.From the judge's decision on any point of law, but notfrom his decision of matter of fact, there lies an appeal to theHigh Court of Justice. With the leave of the High Court,but not without, there is an appeal to the Court of Appealand so to the House of Lords.A few other local courts survive. The most important is thecourt held by the Vice-Chancellor of the County Palatine ofLancaster. But all England has now been brought withinthis system of new county courts, and almost every year theygain something in dignity and importance as parliament givesthem new powers. Their business is entirely civil business.' The County Courts Act of 1888 (51 and jz Vict., c. +3) is the last comprehens~vemeasure dealing with these courts.

466 Constitutional History PERIODWe have already noticed how beside the old courts ofcommon law, there grew up in later Middle Ages a courtadministering equity; how equity obtained a large field foritself by the invention of uses and trusts; and how equitybecame a fixed body of rules to be discovered in the decisionsof the Chancellors.I believe that we may think of equity as becoming a fixedand well ascertained body of law towards the end of theseventeenth century; perhaps 1688, the year of the Revolution,would be as good a year as any to name. Lord Nottingham,who became Lord Keeper in 1673 and shortly afterwardsLord Chancellor, has been called the father of equity, andseems to have done much towards defining the jurisdictionBy the middle of the next century Blackstone could explain,though explanation was still necessary, that courts of equity,like other courts, were bound by fixed rules and were notfree to do just what might seem to be fair and right to theirjudges. 'The system,' he writes1, 'of our courts of equity is alaboured connected system, governed by established rules, andbound down by precedents from which they do not depart,although the reason of some of them may perhaps be liable toobjection.' He then mentions some rules which he thinksirrational (for instance, the husband is allowed curtesy of atrust estate, but the widow is not allowed dower). 'All these,he says, 'and other cases that might be instanced, are plainlyrules of positive law supported only by the reverence that isshown and in general very properly shown to a series of formerdeterminations.' Blackstone, like other common lawyers, wasnot very fond of the chancery. The view of the thinkingEnglish lawyer of his time seems to have been that the chancerywas a necessary evil, though they were unwilling to confesswhat may seem to us the truth, namely that trial by jury wasbecoming an antiquated form of trial inadequate to meet thecomplicated problems which arise under modern law.I propose now to say a little about the domain of modernequity; and first about the courts and their procedure. At thebeginning of the eighteenth century there were but two judgesin the Court of Chancery, the Chancellor [or Lord Keeper] andCommentariu, voL 1x1, p. 433.The Court of Chancerythe Master of the Rolls; and the Master of the Rolls was notcompetent for all business. In early times the Chancellorwas assisted by certain persons known as Masters in Chancery;they sat in court as his assessors and did some ofthe subordinate work under his supervision. Of these theMaster of the Rolls was the foremost and gradually, as itseems, he became more and more an independent judge. Inthe reign of George I1 his functions became the subject of asmart controversy; it was affirmed and denied that he wasmore than a delegate of the Chancellor. An act of parliamentof the same reign set this question at rest (3 Geo. 11,cap. 30). The Master of the Rolls became an independentjudge, but there were a good many matters that he could nothear, and a case which had been before him might be takenbefore the Chancellor for a rehearing. In 1813 a Vice-Chancellor was created ; in I 841 two more Vice-Chancellors,though the third Vice-Chancellorship was not made permanentuntil 1852. In 1851 the Lords Justices of Appeal wereappointed. The final constitution of the court when it wasabolished in 1875 was this: there were four judges of firstinstance, viz. the three Vice-Chancellors and the Master ofthe Rolls. From the decisions of any of these there lay anappeal to what had come to be called the Court of Appealin Chancery. Of this there were three judges, viz. the Chancellorand the two Lords Justicesl. From the Lord Chancellorand from the Court of Appeal in Chancery the appeal was tothe House of Lords. I have already noticed how near theend of the seventeenth century the House of Lords assertedand established its right to entertain appeals from theChanceryS. Such an appeal, unlike a writ of error, mightreopen all questions, as well questions of fact as questionsof law. In the Chancery what has been called 'the one-judge'system prevailed. A suit was begun before the Master ofthe Rolls or one of the Vice-Chancellors and every step inthe suit was taken before him ; and he sat by himself. ThisThe Chancellor by himself, or the two Lords Justices together, would becompetent for all appeals; some matters might come before a single Lord Justice.The Lad Chancellor might sit as a judge of first instance, though it became rarefor him to do so. F.W. M.See abox~e, pp. 316-7.

Cojzstit utiona Z Historywas in sharp contrast to the procedure of the common lawcourts where a question of law was usually argued before anddetermined by all the judges of the court. Then again therewas no jury in the Court of Chancery; it had not the powerto summon a jury. Sometimes it would send an issue of factto be tried in a court of common law by jury; this was atone time a pretty frequent practice, but it grew rarer astime went on, and at last very rare indeed. Usually thejudge determined all questions both of fact and of law. Itwas also the practice before 1852 that if a question of merecommon law (law as opposed to equity) arose in any suitandsuch a question might well arise incidentally-to senda case for the opinion of one of the courts of commonlaw. That practice was abolished by statute in 1852 (15 and16 Vic., c. 86, sec. 61). It is well worth mention as showinghow distinct law and equity had been. The Chancellor wasnot supposed to know common law, nor were the judges ofthe older courts supposed to know any equity. After 1852the chancery judges could decide questions of pure commonlaw if they arose during the progress of a suit.The first step in the commencement of a suit (it was asuit in equity, an action at law) was the filing of a billaddressed to the Lord Chancellor; this stated the matterswhereon the plaintiff relied and prayed the desired relief.Then followed the obtaining of a writ of subpoena. Nowthis differed very materially from those writs original at thecommon law of which I have lately spoken. It did not givethe defendant any knowledge as to what was the complaintagainst him ; it did not mention any cause of action. Therewas but this one simple and perfectly general form of writinstead of the many different forms of writ whereby actionswere begun. This from the first made equity a flexiblesystem; so to speak, it left room for growth; and indeedwhen contrasted with the procedure of the common law theprocedure of equity was comparatively formless. I do notmean that chancery pleading did not require great technicalskill-that would be quite untrue-but there were not a fixednumber of definite forms between which a choice had to bemade. In 1852 a certain change was made which renderedChnrccery Procedureneedless the issue of a writ of subpoena; the defendant wasto be served with a printed copy of the bill, in which therewas an indorsement directing him to appear, but into thisI need not go. The generality of the writ from the earliesttime is the point to which I ask attention. Also it should benoticed that until a comparatively recent time there was noneed that the plaintiff should specify the relief that he wanted;a prayer just for such relief as the nature of the case mightrequire was sufficient, and the plaintiff could be given anyrelief to which he was entitled by the facts alleged and proved.This was afterwards changed, still it remained the practice tothe end to pray for general as well as special relief, and muchcould be granted in answer to this general prayer. All thiswas very different from what went on in the common lawcourts where a plaintiff might fail fatally because he had suedin Trespass when he ought to have sued in Case or in Trover.One other point of procedure is of very great importance.The chancery had for the most part borrowed its procedurefrom the ecclesiastical courts. The defendant was requiredto answer the matters alleged against him in the bill, and toanswer upon oath. The statements of the bill were turned intoan interrogative form, and the defendant had to answer thequestions thus put to him fully and in detail. Now here is agreat contrast to the common law procedure, and I have nodoubt that here was one cause for the great unpopularity ofthe Court of Chancery at an early time; the defendant, itwas said, was forced to accuse himself. It is still the generalrule of our criminal procedure that the accused cannot bequestioned, and indeed cannot give evidence even if he wishesto do so, though some exceptions have already been admittedand the rule seems to be upon its last legs1. But until verylately what is still true of criminal procedure was true alsoof civil cases. Any person interested in the question wasincompetent to testify; this included of course the plaintiffand the defendant, they could not give evidence. This rulewas abolished bit by bit by a series of statutes extending from1 In 1898 (Act to amend the Law of Evidence, 61 and 62 Vict., c. 36) everyperson charged with an offence, and the wife or husband of the person so chargedwas allowed to give evidence at every stage of the proceedings.

470 Cotzstitutiotzad HistoryPERIOD1833 to 1853. The first great alteration took place in 1843,when interested persons other than the parties, their husbandsand wives, were rendered competent witnesses (6 and 7 Vic.,c. 85). In 185 I (14 and I 5 Vic., c. 99) the parties, except incriminal proceedings, were made competent and compellableto give evidence; a later act of 1853 (16 and 17 Vic., c. 83)dealt with the evidence of husbands and wives. It is verynecessary to remember this in reading old cases-not so veryold either, forty years old-we have become so very muchaccustomed to seeing parties as witnesses that we easilyforget that this is only under modern statutes. Now the ruleagainst interested witnesses prevailed in the chancery as wellas elsewhere, and the parties could not give evidence in theirown favour. Still the defendant had to answer the bill uponoath, and could thus be obliged to give evidence in the plaintiff'sfavour. This was not indeed regarded as a giving ofevidence; it was a sworn answer (answer was the technicalword) to the charges made against him in the bill. Wellthen in the chancery you could (to use the proper term)'obtain discovery' from the plaintiff; you could, to use a slangphrase, ' scrape his conscience.' I believe that here we haveone of the causes why the chancery came to be known as acourt of conscience ; the defendant could be obliged to revealwhat he knew-to make sworn confession. Indeed at almostevery point chancery procedure differed radically from commonlaw procedure. Sometimes it seems as if the mere fact thatone rule prevailed in the old courts was a sufficient reason whyanother should prevail in the new. Nor is this mere fancy.The chancery had been obliged to keep very clear of theprovince of the other courts; any open usurpation of theirpowers would have been resented, and if ever there was what, might fairly have been called usurpation it was concealed bya difference of terminology. The two procedures were sodistinct that a lawyer seldom knew much about both: thisemphasized and exaggerated the differences between the twobodies of substantive rules, the body known as common lawand that known as equity.Equity in the course of the eighteenth century became agreat body of rules supplementing the common law, enforcingvFusion of Eqttity nnd Common Law 47 Icertain obligations which common law did not enforce, givingcertain remedies which the courts of common law did not andcould not give. The main illustration of a purely equitableobligation is the duty of a trustee and person who holdsproperty upon trust for another. Of any such obligation thecourts of common law knew nothing.Again, the Court of Chancery gave new remedies forcommon law rights, e.g. injunction and specific performance ofcontracts. You build a wall darkening my ancient lights :the Court of Common Law will give me money damages, theCourt of Equity will enjoin you to pull the wall down. Youcontract to sell me land and refuse to carry out yourcontract: the Court of Common Law will give me moneydamages, the Court of Equity will command you to fulfil yourcontract, and in case you disobey will put you in prison.It is easy to see how awkwardness would arise from sucha dual system. In order to get complete justice I may haveto go to two courts.Mitigations of the evil were introduced in the nineteenthcentury. It was settled, for instance, that the Court of Co~nmonLaw might grant injunction, and the Court of Equity mightgive damages. But at length it was determined to abolish thedual system. This was effected by the Judicature Act, whichcame into force in 1875 and amalgamated all the old courts,i.e. Chancery, King's Bench, Common Bench, Exchequer,Court of Admiralty, Court of Probate, Court of Divorce.The Court of Admiralty had a long history of its ownfromthe close of the Middle Ages.The Court of Probate and the Court of Divorce werecreated in 1857, and the old jurisdiction of the ecclesiasticalcourts over testamentary and matrimonial causes was transferredto them, together with some new powers, such as thatof completely dissolving a marriage.In place of these we have the High Court of Justice andthe Court of Appeal.The High Court of Justice is a court of first instance forall England with unrestricted competence in all civil actions,capable of administering and bound to administer both lawand equity in every case.

Constitzttiotza Z HistoryOriginally it had five divisions-Chancery ; King's Bench;Common Bench ; Exchequer ; Probate, Divorce and Admiralty.Hut an Order in Council, 16 Dec. 1880, fused the CommonBench and Exchequer in the King's Bench Division. Wehave therefore now three divisions-Chancery ; King's Bench;Probate, Divorce and Admiralty.To each of these divisions certain business is speciallyassigned. Often a plaintiff has a choice ; sometimes there isbut one division to which he ought to go. But this distributionof business is an utterly different thing from the olddistinction between courts of law and of equity. Any divisioncan now deal thoroughly with every action ; it can recognizeall rights whether they be of the kind known as ' legal ' or ofthe kind known as 'equitable' ; it can give whatever reliefEnglish law (including ' equity ') has for the litigants. Theycan no longer be bandied about from court to court. Also itis regarded as a mere matter of convenience which mightbe altered at any time by rules made by the judges. Itschief practical import is that in cases of a kind speciallyassigned to the Chancery Division there can be no trial byjury without leave of the judge. In other cases either of theparties can insist that any question of fact that there may beshall be tried by jury. But really trial by jury in civil casesis becoming less and less common. Very usually both partiesare willing that all questions whether of law or of fact shallbe disposed of by the judge.From the High Court, in almost all cases, lies an appealto the Court of Appeal and thence again to the House of Lords.All questions of law (and often of fact) may be reopened.-There is no jury in Court of Appeal or House of Lords.The number of judges is small-twenty-nine for HighCourt and Court of Appeal together, including the Chancellor'.All (except the Chancellor) are appointed by the crown; paidby salaries charged on the Consolidated Fund; may not sit inthe House of Commons ; hold office during good behaviour,but can be removed by the sovereign on an address presentedby both Houses.House of LordsFrom almost every judgment or order of the Court ofAppeal appeal lies to the House of Lords.We have seen how in the Middle Ages the House of Lordsbecame a court capable of correcting errors of the lower courtsof common law, and how in the seventeenth century it successfullyasserted the right to hear appeals from the Chancery.It is well, however, to note the discrepancy between lawand actual practice. In the eighteenth century it becamecustonlary for the lords to leave their judicial business to bedone by such only of their number as were distinguishedlawyers. So late as 1844 some 'lay lords' were with difficultyrestrained from voting on difficult questions of law arising outof the trial of Daniel O'Connell. We have come to regard itas a 'constitutional' rule that only the law lords are to sit,and now by a statute of 1876 there must be three law lordspresent-but the rule is only a ' constitutional ' not a ' legal 'rule-every lord who has a right to sit and vote when theHouse is about its legislative business, has also a right to sitand vote when the House is acting as a Court of Appeal,though this right is not exercised.The act of 1876 introduced lords of a new kind, lords ofappeal in ordinary-salaried and holding office during goodbehaviour, but dismissible on address presented by bothHouses. Their dignity is not hereditary. At present thereare three such lords-there will hereafter be four along withthe Chancellor-and with some help from other law lords theydo the judicial business of the House.b. The Crimitzal Courts. Punishable offences fall intotwo classes-indictable and non-indictable.A vast quantity of petty offences are by statute punishableupon summary conviction-this means trial without jurybefore two justices (or one police magistrate).We have traced the history of this jurisdiction1. It growsrapidly during the eighteenth and nineteenth centuries.Statute after statute prescribed that this and that pettyoffence might be summarily punished by the justices. Atlast, in 1848, a statute was passed regulating the procedure.The number is now (1908) thirty-three. See above, pp. 232-6.

474 Cofzstit utionnd History PERIODThe courts in which this jurisdiction is exercised are oftenspoken of as Petty Sessions.The punishments inflicted by these courts can seldomexceed three months imprisonment and for the most partconsist of fines of varying amount. The province of thissummary justice is variegated. At the one end of the scalethere are what would commonly be called the smaller crimes-assaults, small thefts, malicious injuries to property ; at theother, disobediences to statutory rules framed to secure someeconomic or social good, as, for instance, public health, education,the well-being of factory children, a revenue from exciseand customs and the like: between these poles lie the breachesof good order, such as disorderly drunkenness and vagabondagein its various forms, the pettier kinds of dishonesty-adulteration,the use of false weights and measures, cruelty to animals,some electoral malpractices and other particulars not to beclassified. How vital a part of our system this summaryjustice has become may best be shown by figures. In 1883the number of persons convicted by juries did not amount toIZ,OOO, while more than 80,ooo sentences of imprisonmentwere passed by justices without any trial by jury1.Generally, but not always, there is an appeal to Quarter Sessionsand questions of law can be brought before the Highcourt.In some large towns this work is now done by paidjustices of the peace known as police magistrates, or stipendiarymagistrates. The system was gradually introduced into Londonby statutes beginning in 1792, and since 1835 a municipalborough may have a stipendiary magistrate if it chooses toask for one and pay for one. These magistrates are appointedby the queen, and hold office like the other justices of thepeace merely during good pleasure.The graver offences (felonies and misdemeanours) can bepunished on an indictment. Indictment (as already said)is still in form an accusation made by a grand jury. Anindictment may be the first step in a prosecution. As amatter of fact grand jurors do not now proceed upon theirown knowledge. Someone prefers a bill of indictment, and1 Of 6r,+fj3 persons tried for indictable offences in 1905, 49,138 were triedsummarily. judicial Statistics, Engiand and Wales, Pt. 1.Cri~ninal Courtsthey, after hearing evidence for the prosecution, but not forthe defence, decide whether there is sufficient cause for puttingthe accused upon his trial : if so, they find the bill a true bill,if not, they ignore it. The grand jury must consist of notless than twelve, not more than twenty-three.'Any person may present a bill to a grand jury, accusingany other person of any crime whatever '-this is the generalrule towhich as yet hardly any exception has been made'. Thusanyone may prefer a bill against one of the queen's ministers.An indicted person will be tried-unless he cannot befound, in which case he may (theoretically) be outlawed. Anoutlawry, however, would be a tedious process conducted bythe sheriff; the outlaw, in case of felony or treason, would bein the same position as if he had been tried, and even in caseof misdemeanour his goods would be forfeited. Outlawry isnot used now-indeed is not worth using.There are other means besides indictment of bringing aman to trial for an indictable offence-but these are of limitedapplicability.(I) A verdict of a coroner's jury of manslaughter ormurder is equivalent to indictment.(2) So too is a criminal information by Attorney-Generalor the Master of the Crown Office in case of misdemeanour.A person thus accused by indictment, inquest, or information,is tried by a petty jury.The criminal courts are (I) Quarter Sessions, (2) the HighCourt of Justice.Quarter Sessions are not competent to try quite the worstoffences, such as murder, treason, and some others-perjury,forgery, libel, etc. They are constituted, as of old, by justicesof the peace-who are the judges of law-while a jury decidesquestions of fact. An elected chairman presides?Since 1875 all the other courts which try indictableoffences are theoretically branches of the High Court of Justice-this is a reform of a highly technical character. Prisonersare tried either before the High Court in London, or at theCentral Criminal Court, or before Commissioners of Assize,Oyer et Terminer, Gaol Delivery; but such CommissionersMr G. J. Talbot, K.C., reminds me that a very considerat~le inroad on theold principle was made by the Vexatious Indictments Act of 1859.' In Quarter Session boroughs the Court IS a recorder.

476 Constitutional History PERIOD(though they are not in all cases permanent judges of theHigh Court) hold the High Court of Justice in the variousshire towns. To ex~lain this would take us too far.In these criminal cases there is properly speaking noappeal. But (I) occasionally the High Court will grant a newtrial after a conviction for misdemeanour : it does not grant anew trial in case of felony, or after an acquittal for misdemeanour.(2) There is- a procedure b; writ of errorwhereby (with the Attorney-General's consent) cases can betaken to the Court of Appeal and thence to the House ofLords : but this procedure- can only be used in very few cases-it can only be used when there is an ' error apparent on therecord.' It is difficult to describe without going into detailswhat errors are 'apparent on the record' and what not, butthe main matter is this, that no error made by the judge incharging the jury will appear on the record, and a wrong oreven perverse verdict cannot be thus corrected. In truthwrits of error are extremely rare1. (3) On a conviction (but notan acquittal) the judge may, if he thinks fit, reserve a questionof law (but not of fact) for a Court for Crown Cases Reservedwhich will consist of five or more judges of the High Court.Lastly the king can pardon a criminal, either absolutely or uponcondition, and-this power, wielded by the Home secretary, issometimes used as a means (a clumsier means there could notbe) for practically nullifying an unsatisfactory verdicts.It should just be noticed that the House of Lords has otherjudicial functions besides that of acting as a Court of Appeal,functions which, were they exercised at all, would, I take it,even at the present day, be exercised by the whole body ofthe House, and not merely by the law lords. (I) As of old apeer accused of felony or of treason must be tried by hispeers. He cannot even (it seems) elect to be tried by a juryas a commoner would be8. (2) There might be an impeach-1 By the Criminal Appeal -. Act, 7 Edw. VII, c. 13, 1 20, writs of error wereabolislyed.In 1907 (Criminal Appeal Act, g Edw. VII, c. 23) a Court of CriminalAppeal was established. A person convicted on indictment may appeal on anyg~ound of appeal which involves a question of law alone. If a question of factalone or of mixed law and fact is involved he must obtain the leave of the Courtof Criminal Appeal or the certificate of the judge who tried him. The powers andauthority of the C.C.R. are now vested in the Court of Criminal Appeal, and itsold procedure by case stated may still be used in certain cases.8 See above, pp. 169-71.ment-a procedure of which we have already spoken1. Sincethe death of William 111 there have been but nine; in thenineteenth century but one, that of Lord Melville in 1805; themost famous case of course is the trial of Warren Hastingswhich dragged on its weary length at irregular intervals forseven years. It seems highly improbable that recourse willagain be had to this ancient weapon unless we have a time ofrevolution before us. If a statesman has really committed acrime then he can be tried like any other criminal : if he hasbeen guilty of some misdoing that is not a crime, it seems farbetter that it should go unpunished than that new law shouldbe invented for the occasion, and that by a tribunal ofpoliticians and partizans; for such misdoings disgrace andloss of office are now-a-days sufficient punishments. Lastly amodern House of Commons will hardly be brought to admitthat in order to control the king's advisers it needs the aid ofthe House of Peers. However there the old weapon is-anaccusation by the commons of England at the bar of theHouse of Lords.We have said that indictment may be the first step inprosecution; but, as a matter of fact, this is not usual.Generally before the accused is indicted, he is subjected to amagisterial examination and is committed to prison to awaithis trial or else he is bailed. Magisterial examination, ofwhich we have already traced the historical beginnings instatutes of Philip and Mary, has now become a preliminarytrial2. Both prosecutor and accused may produce witnesseshavepower to compel the attendance of witnesses. Theaccused is not questioned, is not bound to say anything,receives 'the usual caution.' The procedure is regulated by astatute of 1848 (11 and IZ Vic., c. 42). An application for awrit of habeas corpus is a ready means for bringing before theHigh Court any question as to the legality of an imprisonment.The famous act of 1689 was made yet more efficient by anact of 1816.Of substantive criminal law we must say but a very fewwords. At the beginning of the last century the number ofSee above, pp. 31 7--8.See above, p. 232.

Constitutional Historycapital crimes was very large; it has been diminished by aseries of acts beginning in 1827 and extending to 1861. In thatyear it was reduced to treason, murder, piracy with violence,and setting fire to dockyards and arsenals. As regards treasonthe basis of our law is still the statute of 1352 on which wehave already commented1. The process of glossing its elasticlanguage about 'imagining the king's death,' and 'levyingwar against the king,' went on during the eighteenth century.And in 1795 an act was passed, which is still in force, givingstatutory authority to several of the interpretations whichjudges had put upon the old act. At the end of the eighteenthcentury there was a great outcry against what were calledthe constructive treasons-the doctrines whereby judges hadstretched the words of the statute of Edward 111 beyondtheir natural meaning. Those doctrines, however, seem stillto be law, though some of the offences which they declare tobe treason can now be dealt with under a statute of 1848 asfelonies subjecting the offender to a maximum punishment ofpenal servitude for life.The old classification of indictable crimes as treasons,felonies and misdemeanours is still maintained and has someprocedural consequences. A trial for felony differs in somerespects from a trial for misdemeanour. But owing to theabolition of the punishment of death in all, except a very few,cases, it has lost most of its old meaning and is now littlebetter than an absurdity-a misdemeanour is now oftenpunished more severely than a felony. But of all thesematters you will have to learn a great deal more when youcome to study criminal law. I think, however, that a lectureron constitutional law is bound to try to bring out the relationbetween what we call ' the government' and the administrationof justice.c. Goverfzwzent and Justice. Notice : ( I ) The independenceof the judges. Of the terms of their appointment wehave already spoken : they hold office on good behaviour butare liable to be removed on an address presented by bothHouses. The Lord Chancellor is a curious exception to theSee above, pp. 226-8, 319.v Government and Jtcstice 479general rule. Again, since their salaries are charged on theConsolidated Fund, their conduct does not come beforeparliament year by year. Further, for a judge to give anopinion as to a case which was to come before him judiciallywould now be considered distinctly wrong. Coke condemnsthe practice in the Institutes, though it had been common,and he himself had given opinions to the crown. We havealso heard Coke assert the doctrine that the king, though heis the source of all justice, cannot act as a judge. Since thefall of the Star Chamber no king has sought to do this.(2) The crown has no control over civil justice. Theprocess of the superior courts runs in the queen's name-' Victoria Dei Gratia etc. commands the defendant to appear '-but a plaintiff obtains such a writ as a matter of right and thequeen herself could not prevent its issue. So when the plaintiffhas obtained judgment, execution follows as a matter ofcourse; he obtains a writ commanding the sheriff, e.g., tosell the goods of the defendant to satisfy the debt. The writruns in the queen's name-' Victoria D.G. etc. commands thesheriff to an execution'; but Victoria cannot stop the issueof the writ. The sheriff would be bound to execute it, evenif he had a command to stop from the queen's own mouth orfrom a Secretary of State. And a sheriff who disobeyed thewrit would be liable not merely to criminal proceedings (whichthe queen might stop) but to civil proceedings at the suit ofthe party damaged.Again, the royal power of pardon does not extend to civilproceedings, If A owes B a debt, the queen has no power toforgive the debt. So if A assaults or libels B, the queencannot forgive A, or stop B from suing A. This is so, evenwhen the wrong is a crime as well as a tort (civil injury).Thus in the case of false imprisonment, which is both a wrongand a crime-the queen can pardon the crime, but not thetort The importance of this can be seen if we suppose theperson guilty of false imprisonment to be a Secretary ofState, for the queen cannot prevent his being sued. Heavydamages have before now been recovered against a Secretaryof State-the crown could not protect one of its most eminentservants.

Covtstitutional History(3) On the other hand legally the crown has a considerablecontrol over criminal proceedings. (i) It can pardon anycrime before or after conviction. This power is exercised forthe king by a Secretary (Home) of State. A may commit abrutal murder, the king can pardon him and so stop any trial.An explanation of this wide legal power may be seen in this,that during the Middle Ages there were two methods of proceedingagainst a felon-the appeal brought by the personinjured by the crime, for instance, the person whose goods werestolen, or the next kinsman of the murdered man-and theindictment, a royal procedure at the king's suit. The king bypardon might free a man from indictment, but not from appeal.But appeals of felony have long been disused and wereabolished in 1819 (59 Geo. 111, c. 44). Thus the king cancompletely pardon any crime. The one limit to the efficacyof a pardon is that imposed by the Act of Settlement (I~oo),namely, that a pardon cannot be pleaded to an impeachment.In Danby's case, 1678, it had been questioned whether animpeachment could be prevented by a pardon; it had beencontended that an impeachment should be considered asanalogous rather to an appeal of felony than to an indictmentat the king's suit. We must, I think, take it as the result ofthat case that, as the law then stood, an impeachment couldbe prevented by a pardon-but the Act of Settlement alteredthe law. A pardon then cannot stop an impeachment-itcannot be pleaded as a bar to an impeachment-but there isnothing to prevent the king from pardoning after the impeachedperson has been convicted and sentenced, and some of theScottish lords who were impeached for the rebellion of 1715received pardons.The legal power of pardon then is very extensive indeed.The check upon it is not legal but consists in this, that theking's secretary may have to answer in the House of Commonsfor the exercise that he makes of this power.The king has no power to commute a sentence. Whenwe hear of sentences being commuted, what really happens isthat a conditional pardon is granted : a condemned murderer ispardoned on condition of his going into penal servitude. It isa nice question whether he might not insist on being hanged.Pzdbdic n?zd Private Prosecutio%48 I(ii) The king's Attorney-General has power to stop anycriminal prosecution without pardon. All criminal proceedings(now that appeals are abolished) are in law at the suitof the king-Rex v. A. B. If the king's Attorney-Generalstates that he will not prosecute (enters a ?zollt~rosepzti) thenproceedings are at an end, though other proceedings may bebegun. This power is sparingly exercised to stop prosecutionswhich are obviously vexatious. The safeguard consists inthis, that the Attorney-General is expected to be a memberof the House of Commons, and according to usage a memberof the Ministry, though not of the Cabinet. Any use he maymake of this power might thus be called in question : hecould not use it for political purposes without the approval ofthe House of Comnlons.On the whole, though the crown has thus by law acomplete control over criminal justice, the prosecution ofoffenders has hitherto been left very much in the hands of thepublic. The king has had officers, 'law officers,' Attorney-General and Solicitor-General, charged with the duty ofbringing the greatest offenders to justice, but it is in thepower of any man to begin a criminal prosecution bypresenting a bill of indictment to a grand jury, and as amatter of fact, until very lately, it has generally been leftto those who have suffered by crime to bring an ordinarycriminal to justice. This work is now falling more and moreinto the hands of a Director of Public Prosecutions, an officerfirst appointed in 1879, but we have as yet made no largeinroad on the general principle, that any person may prefera bill of indictment against any other person accusing him ofany crime. The assent of the Director of Public Prosecutionshas been required in certain libel cases by an act of 1851, butthat, I think, is as yet the only exception. This principle isan important one: if I think that the Home Secretary hasbeen guilty of any criminal offence, e g. of bribery or extortion,I can present a bill to a grand jury-simply as a member ofthe public, and although the alleged crime has done mepersonally no harm-and it would be a very serious step foran Attorney-General to shelter his colleague by stopping aprosecution, unless it was obviously frivolous. A principle of

482 Constitutiorzad History PERIODPetition of Rightlaw is not ur~important because \ve never hear of it; indeedwe may say that the most efficient rules are those of whichwe hear least, they are so efficient that they are not broken.No person, even though he be a minister of the crotwl, cancommit an indictable offence without running the risk of somemember of the public beginning a prosecution against him.(iii) And now as to proceedings against the lting. Herewe meet the maxim that 'the king can do no wrong.' This wemay translate thus, ' English law does not provide any meanswhereby the king can be punished or compelled to makeredress.' I think that you ought to distinguish quite clearlythis proposition of English law from the doctrine of somewriters on jurisprudence, that a subject can have no rightagainst the sovereign, that the sovereign can have no legalduty to the subject. I confess that this doctrine seems to memerely a matter of words. Suppose, to take the simplest case,that an absolute monarch declares it his will that his subjectsmay sue him for any money they lend him, shall we say, is itconvenient to say, that, while this law remains unaltered, itgives the subjects a right against their sovereign ? I believethat in the United States a citizen can sue the sovereignpeople. Rut at any rate one should not, as Blackstone does,identify this speculative doctrine with our English rule. Ourking is not in the jurist's sense sovereign, there is no reasonin the nature of laws, rights, remedies, why our king shouldnot be liable to be sued, and even to be prosecuted. Asa matter of fact the Judicial Committee of the Privy Councilhas lately held that according to the law in force in Ceylonthe crown can be sued (g Ap., Cas. 571); it is said that kingsof Scotland were sued by their subjects ; it has been said thatour Henry I11 was sued by his subjects, but this is extremelydoubtful, and I do not think that our law has ever known anymode of suing the king, save the petition of right and somesimilar proceedings which are mere appeals to the king'sconscience.Proceedings on a petition of right are nolv regulated by anact of 1860 (23 and 24 Vic., c. 34). The petition is presentedto the Secretary for the Home Department, and by him it issubmitted to the queen. If she thinks fit she grants her fiatthat right be done, and then there is in effect a lawsuitbetween the petitioner, or suppliant as he is called, and theAttorney-General. We may regard it as a constitutionalusage, but certainly not as a rule of law, that the queen oughtnot to withhold her fiat. The scope of this remedy by petitionof right seems in former times to have been limited to casesin which the king was in possession of some hereditament,or some specific chattel to which the suppliant claimed a title.The judgment, if favourable to the suppliant, was that theking's hands be removed and possession be restored to thesup pliant-qz~od 71za7zz~s domini regis amoveaatz~r et possessiorestitzdatur petenti, saA~o j~re domini regis. In I 874, seeminglyfor the first time, the question was decided whether thisremedy could be employed as a remedy for a breach ofcontract. In Thomas v. Reg. (L.R. 10, Q.B. 31) the suppliantasserted that he had invented a certain system of heavyartillery, and that in consideration of his placing his inventionat the disposal of the royal ordnance department, the Secretaryof State for War had promised that a reward should be givenhim, the amount of which was to be determined by the Hoardof Ordnance. He asserted further that this promise had beenbroken. The Attorney-General, for the sake of argument,admitted that the Secretary for War had authority to make .this contract as agent for the queen ; so the legal point wasargued whether the petition of right could be used as aremedy for breach of contract. Blackburn delivered a verylearned judgment holding that, despite the apparent narrownessof the old precedents, which dealt solely, or almostsolely with demands for specific lands, the petition of rightwas a remedy applicable to breaches of contract. Judgmentcould be given in the suppliant's favour to the effect that hewas entitled to a particular sum by way of damages. Now inthese days breach of contract is likely to become the mostcommon and useful field of the petition of right. The queenand her officers are no longer in the habit of seizing land uponall manner of pretences; there are few pretences available,escheat is very rare, but contracts with high officers of state,who contract on behalf of the queen, are by no means rare,and often involve large sums of money. On such contracts

484 Colzstitutional History PERIODthe subject, the other contractor, has a remedy. The courtcan only declare that he is entitled to such and such relief,e.g. to L10,ooo damages ; no execution can issue against thequeen. Still it is obvious that a very strong moral pressurecan thus be brought to bear on the queen's advisers. It wouldbe a very unpopular thing were they to advise the queen toprevent any really arguable question coming before a courtof law, but still more unpopular to deny the suppliant thatredress to which he had been declared entitled by the judgmentof a court.(iv) We can hardly lay too much stress on the principlethat though the king cannot be prosecuted or sued, hfsministers can be both prosecuted and sued, even for what theydo by the king's express command. We often say that inthis country royal immunity is coupled with ministerialresponsibility: but when we speak of ministerial responsibilitywe too often think merely of the so-called responsibility ofministers to parliament. Now that is an important matter ; itis an important matter that our king cannot keep in officeadvisers who have not the confidence of the majority of theHouse of Commons-in the last resort this impossibility couldbe brought home to him by a refusal to grant supplies, ora refusal to renew the Army Act. But let us look at thematter a little more closely. Strictly speaking, ministers arenot responsible to parliament ; neither House, nor the twoHouses together, has any legal power to dismiss one of theking's ministers. Hut in all strictness the ministers areresponsible before the courts of law and before the ordinarycourts of law, and they are there responsible even for thehighest acts of state ; for those acts of state they can be suedor prosecuted, and the High Court of Justice will have todecide whether they are legal or no. Law, especially modernstatute law, has endowed them with many great powers, butthe question whether they have overstepped those powers canbe brought before a court of law, and the plea 'this is anofficial act, an act of state' will not serve them. A great dealof what we mean when we talk of English liberty lies in this.Decline ofthe SherzfG. The Police System.We must speak briefly of the system by which order ismaintained, and suspected persons are brought to justice, eventhough we can take but a superficial view of what has come tobe a great department of law.The decline and fall of sheriffs office has already beentraced down to the seventeenth century1. During the wholeof our period this process of decay is continued, the sheriffloses function after function. We know the High Sheriffnow-a-days as a country gentleman, who (it may be muchagainst his will) has been endowed for a single year with highrank, and burdened with a curious collection of disconnectedduties, the scattered fragments of powers that once were vast.He receives the queen's judges on their circuits, he acts as areturning officer in parliamentary elections for his county, heexecutes civil judgments, and has to see to the hanging ofthose who are appointed to die. He has lost almost all otherduties. Long ago the institution of justices of the peacegradually deprived him of all penal jurisdiction, and in 1887the court in which he exercised that jurisdiction-the sheriff'stourn-was formally abolished (he had, I think, ceased tohold it for quite two centuries); in 1846 such civil jurisdictionas the old county court had was transferred to the so-callednew county courts ; in I 865 he was relieved of the custody ofprisoners, except those appointed to die. I think that I havementioned what now are his main duties. Civil execution isthe most important of them, i.e. the seizing and selling oflands and goods in order to satisfy the judgments of civilcourts. Such duties are performed for him by an undersheriff,but the sheriff is answerable tor the mistakes of hissubordinates. Some fees and percentages are payable forthis work, but the sheriff has no salary, and is always a loserby his office. He is still appointed by the king, who choosesthe sheriffs (pricks the sheriffs) from a list settled at ameeting, at which some of the judges and some of theministers are present, and under the old statutes, of which wehave formerly spoken, he can hold office but for one year2.See above, pp. 232-4.See Maitland, Justice afzd Police.

486 Co?zstitutionnZ History PERIODWe have seen how in old times it was one of $is mainduties to pursue and arrest malefactors, and also how thiswork fell more and more under the control of the Justices ofthe Peace, the arrests being actually made by the parish ortownship constables under warrants of the justices. The oldsystem of parish or township constables lingered on far into thenineteenth century. During the eighteenth century, this andthat big town obtained a special act for the creation of a paidforce of watchmen, and London began to get a force of paidconstables in 1792, a force which gradually increased in sizeand was placed more and more directly under the control ofthe Home Secretary. But for England at large, the onlyconstabulary was that old parish or township constabulary ofthe early history of which we have spoken. So late as 1842an effort was made to put new life into the old svstem. Byan act of 1842 (5 and 6 Vic., c. 109) the general principle wasput upon the statute book that every able-bodied man residentwithin any parish, between the ages of twenty-five and fiftyfive,rated to the poor rate at £4 or more, was liable to serveas constable for the parish ; but certain classes were speciallyexempted, and the list of exemptions was long. Lists ofpersons liable to serve were to be laid before the justices, andthey were thereout to appoint so many constables for eachparish as they should think fit; substitutes were allowed ; anda man who had served in person or by substitute was exemptfrom serving again until every other person liable to serve hadtaken his turn ; he was not bound, as a general rule, to actoutside his parish ; he might earn certain fees, but otherwisewas unpaid. Thirty years later, in 1872, the new police forceshaving been created in the meantime, a statute ordained thatno parish constables should be appointed for the future, unlessthe justices at Quarter Sessions should think fit. The act of1842 can still be put in force if need be; the able-bodied man,not specially exempted, is liable to be constable for his parishor to find a substitute; but practically this statute is neverput in force. Then there is another act of 1831 in force, whichenables the justices, in case of any reasonable apprehension ofriot or felony, to force men to serve as special constables. ASecretary of State has even greater powers-he can oblige theThe Policeexempted classes to serve as special constables ; we must notregard this power as obsolete, on occasions it would doubtlessbe used.But gradually a new police force was called into being.The Metropolitan force was created in 1829 by an act introducedby Sir Robert Peel. In 1839 the City of London forcewas created. In 1835 occasion was taken of the great reformof the municipal boroughs, to insist that every such boroughshould have a paid police force. In 1839 the counties werepermitted, in 1856 they were compelled, to create paid countyforces. Thus by the beginning of 1857 the whole of Englandhad been brought within the new system.There is no one police force for the whole of England, butrather a number of distinct local forces. Part of the expense(if the force is reported as efficient) is paid by the nation, partis paid by the counties and boroughs. The various forces areannually reviewed by royal inspectors, who report to theHome Secretary, and only, if their report is favourable, doesthe nation contribute to the expense. There are some veryconsiderable differences between the various forces. Thus inthe Metropolitan district there is very perfect centralization,no 'local authority' has anything to do with the system.A Commissioner and two Assistant Commissioners, holdingoffice during the queen's good pleasure, regulate and command,appoint and dismiss the constables, but a supreme supervisorycontrol is reserved to the Home Secretary.But take a county force: the Home Secretary can makegeneral rules as to the government, pay and clothing ofconstables; but the justices in Quarter Sessions, with theSecretary's consent, determine the number of the force, andappoint and can dismiss the chief constable1. The chiefconstable has the general command of the force, subject tothe lawfill orders of the justices in Quarter Sessions, and heat his pleasure can dismiss any of his subordinates.Under the Local Government Act of 1888 (51 and 52 Vict., c. 41) theCounty police was placed under the general control of the Standing JointCommittee of Quarter Sessions and the County Council. The control overindividual constables is however retained hy the Quarter Sessions and even byindividual justices. See Jenks, Agt Outline of E~zylisA Lord Government,pp. 179-81.

Constitutions Z HistoryLet us then consider briefly the position of a police constable,he has peculiar duties and peculiar powers, and issubjected to a peculiar discipline. Take this last point first.The peculiar discipline to which he is subject is not nearly sostringent as that of military law; we have no court martialfor the policeman. A county constable can be dismissed atthe will of the chief constable. The chief constable, if hethinks him remiss or negligent in his duties, can reduce himin rank, or fine him one week's pay. On a summary convictionfor neglect or violation of duty, he can be fined £10 orcondemned to a month's hard labour; but on the whole hehas been left much to the general law, and if guilty of anyoffence against it, can be treated like another offender.Now looking at his powers and duties, we find that he hasin the first place powers and duties concerning the arrest ofoffenders. It is his duty to execute warrants for arrest issuedby the justices, and in so doing he is protected. Unless thereis some flagrant illegality apparent in the warrant he is boundto obey it, and safe in obeying it. But then without anywarrant he may, in certain cases, arrest suspected persons.What those cases are, you will have to learn some day whenyou study criminal procedure. You will find that in thisrespect every person, every member of the public has certainpowers, but that a constable has greater powers. The distinctionbetween felonies and misdemeanours here plays a largepart. For example, there are a number of misdemeanours forwhich a man may be arrested without warrant, if he is caughtin the act by a constable, while a person not a constablewould not be safe in arresting him. You must remember this,that it does not follow that because I have committed a crimetherefore I can be arrested without warrant either by anyone,or by a constable. If I have committed murder anyone mayarrest me without a justice's warrant, if I am drunk anddisorderly a constable may arrest me without a warrant ; butif my crime is perjury or bribery, it will be unlawful toarrest me without warrant. He who does so, whether he bea constable or no, does an unlawful act, does me a wrong; andhe does a dangerous act, for I may lawfully resist him, hisattack is unlawful and my resistance is lawful.Powers alga! Duties of Constables 489Now it is in these peculiar powers of arrest, and in theduty to exercise them, that lies the chief difference betweenthe constable and the private man-he may lawfully makearrests which the private man cannot make lawfully. Butstatutes have gradually been heaping other powers and dutiesupon police constables, e.g. empowering them to enter publichousesto detect violation of the Licensing Acts. If it occursto parliament that steam thrashing-machines are dangerousthings that ought to be fenced, then it passes an act sayingthat 'any constable may at any time enter on any premiseson which he has reasonable cause to believe that a thrashingmachineis being worked contrary to the provisions of thisact, for the purpose of inspecting such machines.' Examplesmight be indefinitely multiplied.We may pass to a few words about the provision that ourlaw makes for the maintenance of order in extreme cases, andwe may start with this, that it is the common law right andduty of all persons, whether constables or no, to keep thepeace, and according totheir power to disperse, and if necessaryarrest, those who break it. From an early time the commonlaw was supplemented by statutes, statutes of the Tudorreigns which made it felony for twelve persons or more tocontinue together riotously for an hour after they had beenordered to disperse by a justice of the peace. These statuteswere temporary, and expired at the death of Elizabeth; in1714 they were replaced by the famous Riot Act (I Geo. I,st. 2, c. 5), which is still in force. It makes it felony for twelverioters to continue together for an hour after the reading ofa proclamation by a magistrate ordering them to disperse.It then requires the magistrates to seize and apprehend allpersons so continuing together, and it provides that if any ofthem happen to be killed, maimed or hurt in dispersing, seizingor apprehending them, the magistrates and those who act undertheir orders shall be held guiltless. This act then gives to themagistrate and those who act under his orders special protectionin case rioters remain together for an hour after the reading ofthe proclamation (commonly but erroneously called the readingof the Riot Act), but it does not say, nor does it mean, thatforce, if necessary armed force, may not be used until then.

490 Coszstitutionn Z History PERIODAs regards the employment of soldiers for the purpose ofputting down riots, we have no special statutes, it is left to thecommon law and to the Riot Act. The general principle seemsto be this, that the soldier, like every other citizen, is boundto do what in him lies to preserve the peace, and if necessaryto suppress unlawful force. 'The military subjects of theking,' said Tindal, C. J., ' like his civil subjects, not only maybut are bound to do their utmost of their own authority toprevent the perpetration of outrage, to put down riot andtumult, and to preserve the lives and property of the people1.'Our law does not even say that military officers must not actwithout the command of the civil magistrates; it is prudent notto do so; but in a great emergency a military officer is entitled,nay bound, to suppress unlawful force by force. A personmay be indicted for not doing what he could to suppress ariot: magistrates can be, and have been, indicted for neglectof their duty of preserving the peace.In connexion with this subject a few last words should besaid of martial law. We have already seen that under theprovisions of the Army Act which is called into force year byyear we have among us a large number of persons who areliving under a special law. This law is to be found partly in theArmy Act itself, partly in articles which can be made fromtime to time by the queen in exercise of powers given by thatact ; and it seems probable that, apart from the act, the queenhas some, not very well defined, power of making Articles ofWar for any troops that she is lawfully keeping. This speciallaw for soldiers is administered by tribunals known as courtsmartial, and is frequently spoken of as martial law; but inthe act it is called 'military law,' and it seems very desirablethat we should adopt that term rather than the other. Forat times the belief has prevailed that there is some other bodyof rules known as martial law, some body of rules that theking or his officers could in cases of emergency bring intoforce by way of proclamation and apply to persons who arenot soldiers and who therefore are not subject to that specialcode of military law of which we have just been speaking.Charge to the Grand Jury of Bristol in 1832. State Trials, N.S., vol. 111,p. 5. See also D~cey, Law ofthe Co~rrlrfution, 6th edn., Note VI, pp. 460-2.Now it may, I believe, be pretty confidently denied thatthere is any such body of rules. In the first place you willreinember that the Petition of Right, after reciting that commissionsunder the great seal had of late been issued tocertain persons to proceed 'according to the justice of martiallaw,' declared that such commissions were illegal, and prayedthat no commissions of the like nature should issue in thefuture. Then again our annual acts legalizing the armydeclare that 'no man can be forejudged of life or limb orsubjected to any punishment within this realm by martial lawin time of peace.' The words ' in time of peace,' which werenot in the earliest Mutiny Acts, certainly seem to suggest thatin time of war men may be punished by martial law. But wecan find a sufficient meaning for them by saying that in timeof war soldiers may be punished by martial law; that is tosay, apart from the Army Acts the crown would have somepower in time of war of maintaining discipline in its troopsby regulations similar to those of our present military code.It must be confessed however that a parliament-an Irishparliament after the rebellion of 1798-has spoken of martiallaw as though it were some known body of rules that mightin times of great emergency be applied to persons who arenot soldiers-that there can be such a thing as a proclamationof martial law. If however we ask, where are we to find thisbody of rules? what is martial law? we shall hardly get ananswer to our question. When considered the matter seemsto resolve itself into this-it is the right and duty of everysubject to aid in the suppressioll of unlawful force; it ismore especially the right and duty of magistrates and peaceofficers of all degrees to do so. The common law defines,though from the nature of the case not very exactly, theoccasions on which force may be repelled by force, and theamount of force that can be used ; and in great emergenciesit may become necessary that even death should be inflicted,and deliberately inflicted, for the suppression of disorder. Aproclamation of martial law can have no other legal effectthan this-it is a proclamation by the king, or by personsholding office under the king, announcing that a state ofthings exists in which it has become necessary that force shall

Constitutional Historybe repelled and suppressed by force; it is a warning thatthe part of our common law which sanctions such repulsionand suppression, has come into play. A court of law, anordinary court of law, may afterwards have to judge whetherreally there was a legal justification for these high-handedacts which were done in the name of peace and order; butdoubtless it might, and in appropriate circumstances would,take into consideration the fact that those who suffered bysuch acts had had full notice that they were about to be done.Rut suppose one of the rebels captured, there is no court thatcan ~YJJ him save the ordinary criminal courts of the country.In particular circumstances it might perhaps become necessaryto shoot him in order that he might not escape or be rescued,and undoubtedly in such a case, if time permitted, it wouldbe well for those who had him in custody to satisfy themselvesthat he was a rebel. But any inquiry that they mightmake about this could not have the effect of a trial before acompetent tribunal ; it would be a wise precaution, but nota judicial proceeding having force as such. He would notreally be tried and condemned by any body of rules knownas martial law-we know not where to look for any such bodyof rules-if lawfully put to death, he would be put to deathunder a rule of our common law, which justifies the suppressionby force of unlawful force. As to the whole of thismatter see the opinion of Edwin James and Fitzjames Stephenin the case of Governor Eyre (Forsyth, Cases and Opinions onConstitutional Law, p. 5 5 I)'.H. Social Afai~s arzd Local Govenzment.There is a vast domain of our public law at which weought to take a brief glance ; we ought to know at least thatit exists, that its boundaries are being extended year byyear, and that it is constantly becoming of greater importance.The title which I have chosen, ' Social Affairs and LocalGovernment,' is, I fear, not very satisfactory, but you will gaina notion of what I mean as time goes on.The Comwzissio~~ of the Pence 493And first a few words as to the organs of local government.We have already said a little about the history of thejustices of the peace. Instituted in the reign of Edward 111,their functions have from that time to the present becomeever more and more miscellaneous. At the present day theirQuarter Sessions are a court for the trial of criminal cases;two justices can form a court of summary jurisdiction topunish any of those thousands of petty offences which cannow be punished without trial by jury; they hold the preliminaryexamination of persons accused of indictable crimes,they can commit the accused to prison or bail him for trial.We have seen also how they have a control over the constabulary,and how they are bound to keep the peace andsuppress riots. These functions of theirs fall under the headings-TheAdministration of Justice and The Police System.But they acquired other functions of the most miscellaneouscharacter. Already in Elizabeth's day, Lambard, who wrotean excellent book on the office of the justices, expressed afear that they were being overladen with work, that theirbacks would be broken by these 'not loads, but stacks ofstatutes1.' His ' stacks of statutes ' would seem very small toour eyes. During the last two centuries parliament has continuedto heap work upon the justices. The Commission ofthe Peace had become the one vigorous and healthy localinstitution. The old communal courts of the hundred andthe shire had fallen into utter decay; they had become atbest courts for petty debts held by the under-sheriff. A nonrepresentativeassembly of freeholders was an antiquatedinstitution quite unsuited to the wants of the time, and noattempt was made to introduce representative governmentinto local affairs. The municipal corporations again werebecoming utterly unfit for any governmental work. With theview of getting favourable parliaments the Tudor and Stuartkings had spoilt the constitution of the boroughs; by theircharters they had vested the local government along with theparliamentary franchise in small oligarchical bodies-mayor,aldermen and councillors-who had the right to fill up the1 See also Dicey, Laze, of the Corzstitzdtiotz, 6th edn., Note XII, pp. 502-19. 1 Lambard, E~re?zarrRa, Book I, c. 7.

494 Constitutionad History PERIODvacancies in their own bodies. These bodies became hopelesslycorrupt; some belonged to the crown and returned toparliament the nominees of the ministry ; others belonged togreat landowners, Whig or Tory, and returned their candidates;others sold themselves from time to time in open market.The justices, on the other hand, were competent members ofthe ruling class, and nothing was more natural than that aparliament of landowners (and remember that in the eighteenthcentury members of the House of Commons had to be landowners)should trust them with all manner of duties andgovernmental powers ; some to be exercised in their QuarterSessions, others to be exercised by a justice or two justicesout of Quarter Sessions.A word about the appointment and qualification of justices.They were and still are appointed by the king (in practice bythe Lord Chancellor), who usually acts upon the recommendationof the Lord Lieutenant of the county. They heldand still hold office merely during good pleasure. Gradually,however, we have come to expect that a justice will not beremoved save for some misconduct. If George I11 dismissesjustices on political grounds, we look back upon this as anunconstitutional act. From of old it has been required thatjustices should have landed property in the county; in 1439(IS Hen. VI, c. 11) the minimum value was fixed at £20per annum. This in the eighteenth century had become verylow, and in 1732 was raised to £100 per annum, becauseas the act (5 Geo. 11, c. 18) says 'the constituting of personsof mean estate to be justices of the peace may be highlyprejudicial to the public welfare.' Not until 1875 (38 and39 Vic., c. 54) was this relaxed, and then only to the extentthat the occu:patio?z of a dwelling house assessed at LIWper annum should also be a qualification1. In the MiddleAges the justices (like members of parliament) were notunpaid, they were entitled to four shillings a day at QuarterSessions; but this sum having become small, like the wagesof the members, was not demanded, and practically the officebecame honorary: in 1855 the payment was abolished.l The property qualification of county justices has now been removed by theJustices d the Peace Act of 1906, 6 Ed. VII, c. 16.v Mzzcnicz$aZ Boroughs 495Thus the local government of England came to be governmentby country gentlemen. But observe that there wasnothing feudal or patrimonial in it. The country gentlemandid not do justice or govern the county in his own nameor as a landlord; he was one of the justices assigned tokeep the king's peace; the justices were expected to obeyorders sent to them in the king's name by the Secretaryof State, and the courts of law, which were never veryfriendly to the summary jurisdiction, were very ready toentertain complaints as to any irregularities committed bythe justices.By degrees the justices of the county became verynumerous. In the Middle Ages the demand is that thereshall be some six or eight in every shire. In Elizabeth's daythis was already far exceeded. At the present time thereare, I believe, more than eight hundred in Lancashire, andeven Rutland has twenty-five, but about o'ne-half of these arebut titular justices; they have not taken the requisite oathsand so become acting magistrates.Much about their governmental powers we shall not beable to say; still we shall return to them hereafter. Meanwhilewe have to notice that in the days of the great ReformBill a new current of legislation sets in which has gone onflowing ever since-the creation of representative local institutions.The first great achievement that we will notice is themunicipal reform of 1835. All the boroughs in England,except London and a few small places which we need hardlynotice, were reformed and were reconstituted according to auniform model, and power was given to Queen in.Counci1 togive the same constitution to other towns as yet unincorporated.We have now about two hundred and fifty incorporatedboroughs-'municipal boroughs.' I have before this asked youto notice that the parliamentary and municipal organizationshave now fallen quite apart. In the later Middle Ages, afterthe representation of towns in parliament had begun, everyborough returned its two burgesses to parliament; you willremember what the sheriff's instructions were, he was to sendtwo burgesses from every borough. In course of time indeed

496 Constitutionn~ History PERIODthis became the test whether a town was a borough or no;those towns were boroughs which sent members to parliament.Now-a-days the two things are quite distinct; a borough fullyconstituted for municipal purposes may send no members toparliament; and again members, who are known as boroughmembers, may be returned by a district which is not underthe government of any municipal corporation. We distinguishthen between the 'parliamentary borough' and the 'municipalborough.' The former is but an electoral district ; it is of thelatter that we have to speak. Now the municipal constitutionis briefly this. The corporation consists of the mayor, aldermenand burgesses ; thus the proper style of the corporationof Cambridge is 'the mayor, aldermen and burgesses ofCambridge.' In case of a city (generally a municipal boroughwhich is also a bishop's see) we speak of citizens instead ofburgesses. Every person who occupies a house or otherbuilding for which he or she pays rates is entitled to bea burgess, and becomes so on having his name put upon theburgess roll. Women may be burgesses. The main right ofthe burgess is to vote in the election of the town council.The government of the borough is vested in the mayor, aldermenand councillors. The number of councillors is fixedupon the incorporation of the borough. The councillors areelected by the burgesses and hold office for three years ; sinceI 872 the election has been by ballot. The number of aldermenis one-third of the number of councillors. They are electedby the council, and hold office for six years. The mayor iselected by the council, and holds office for a year. Thisgoverning body, consisting of mayor, aldermen and councillors,has very considerable powers; it manages the property of thecorporation (which in some cases is considerable); it mustmaintain a proper police force; it must see to the paving andlighting of the town, and so forth ; and it enjoys some legislativepower, for it may make such bye-laws as seem meet forthe good rule and government of the borough and for theprevention and suppression of nuisances. A fine of £5 is theheaviest punishment that it can denounce for the breach of itsbye-laws. Power, however, is given to the Queen in Councilto disallow any bye-law in whole or in part.The Poor LnwThe extent to which the borough is exempted out of thejurisdiction of the county justices varies somewhat fromborough to borough; some boroughs have a separate commissionof the peace and a court of Quarter Sessions held byan officer known as the Recorder. Others have a colnmissionof the peace but no court of Quarter Sessions. Others againhave no separate commission of the peace, but in every boroughthe mayor is ex ojicio a justice and remains so for one yearafter he has ceased to be mayor. Then again some boroughsmaintain their own police, while others are ' policed by thecounty.' Into these variations we must not go. What weare concerned to observe is the growth of democratic, representativegovernment. Under the act of 1835 in all the greattow~is of England, except London, there was erected a bodyconsisting of persons elected by the ratepayers and by therepresentatives of the ratepayers which was armed with manygovernmental powers.Another great step was made one year earlier, in 1834.The administration of the poor law, which down to this timehad been carried on partly by parochial officers, overseers ofthe poor, partly by the justices of the peace, had for a longtime past become very unwise and extravagant. A thoroughreform was necessary if England was not to be made bankruptby its paupers. The country was mapped out into districts,consisting of a number of parishes, which were to be united formany purposes of the poor law : of these ' Poor Law Unions'there are now about 650. Each Union has a Board of Guardiansof the Poor. The justices of the peace resident in the Unionare ex ojicio guardians, and besides there are a number ofcted guardians. They are elected by the ratepayersaccording to a scheme of plural voting; a voter may havefrom one to six votes according to his property qualification :property rated at less than £50 gives one vote, property ratedat £100 two votes, and so on up to six1. The constitutiontherefore of a Board of Guardians is not so democratic as that1 By the Local Government Act of 1894 (56 and 57 Vict., c. 73, sec. zo)ex o@cio guard~ans were abolished, and each elector was entitled to give one voteand no more for each of any number of persons not exceeding the number to be

Constitutional Historyof a municipal corporation. The Board has very large powersin administering relief of the poor within the district of theunion. But I want you to observe that every reform of localgovernment has hitherto meant an addition to the powers ofthe central government. A large control over the whole poorlaw system was in 1834 given to certain Poor Law Commissioners; they had wide powers of checking the actions ofthe guardians, and even of legislating ; they could issue rules,orders and regulations as to all matters relating to the reliefof the poor. It was expected that the commission wouldonly be necessary for a time, but it was renewed and renewedagain and developed first into the permanent Poor LawBoard, and then into the existing Local Government Board,which as we have seen is but nominally a board, for itsPresident, a cabinet minister, can and habitually does exerciseall its most multifarious powers. These two processes havebeen going on side by side; on the one hand we get neworgans of local government, on the other hand we get neworgans of central government, the organs of central governmentbeing some or other of those high officers of state whoaccording to constitutional usage form the cabinet.The elaborate system of sanitary law which exists in ourown days we can carry back only to 1848. The main stagesin its development are marked by acts of 1848, 1858 and1875 ; it is now represented chiefly by a great statutory code,the Public Health Act of 1875. Throughout England localsanitary authorities have been created. In some places theyare the municipal corporations, in others again the guardiansof the poor, in others again they are Hoards of Health electedby the ratepayers for the purpose. The central authority isthe Local Government Board. Then we have the greateducational system introduced by the act of 1870. It isworked by school boards and school attendance committeeselected by the ratepayers and controlled by the EducationDepartment, a board consisting of cabinet ministers whosepowers are exercised chiefly by the Lord President of theCouncil, and the Vice-President of the Department'. ThenThe Education Act of 1902 abolished the School Boards and entrustedEducation to the 'local Education author~ty,' i.e. the Council of a County orv Coanty Councils 499again we have elected Highway Boards and elected BurialBoards1.As a general result we have a pretty wild confusion noteasily to be described in elementary lectures. For one thingwe may note that each of these systems of which we havespoken had a geography of its own. In 1834 when the newPoor Law was passed and the country was mapped out intoPoor Law Unions the fatal mistake was committed of disregardingthe old territorial divisions, the county boundary.Often a Union extends into two or more counties. We havenow one geography for civil justice, another for criminaljustice, another for police, another for poor law, another forsanitary law and so forth.Perhaps we have lived to see the beginning of the end ofthis disorder. I refer to the great Local Government Act of1888 (51 and 52 Vic., cap. 41). The result of this has beento add to the number of the organs of local government bycreating County Councils. The constitution of the boroughshas been taken as a model for the counties. Each countyhas a Council elected by the ratepayers, and to this Councilhave been transferred all or most of those powers of thejustices of the peace that we can in any sense call administrative.The government of the county police force is givento the Council and the court of Quarter Sessions jointly, andis to be exercised by a joint committee. On the whole we maysay that it is intended that the Council shall be the governmentalassembly of the shire, while the justices both in andout of Quarter Sessions keep all those powers which can becalled judicial. I need not, however, warn you again thatthese are not the words of the statute book; it goes intoCounty borough, and also (but only for elementary purposes) to the Council of aborough with more than ro,ooo and to the Co~incil of an Urban District with morethan zo,ooo inhabitants.The Local Government Act of 1894 created Parish Councils and DistrictCouncils. The Parish Council is empowered to adopt the Burial Acts, and wherethe area of a Burial Board is identical with that of a rural parish, the Burial Boardwill merge in the Council. The District Councils inherit the functions formerlydischargeci by the Highway and Sanitary Boards. An Urban District Counc~lmay also by consent or by Order in Counc~l become the sole burial authoritywithin its district.

500 Constitutional History PERIODminute details, and in England it would often be hard enoughto say on general principles whether a power was to bedeemed administrative or deemed judicial. But this (it isexpected) is by no means all that the County Councils willin course of time do for us. Listen to this clause (sec. 10):it is an extremely good instance of the way in which parliamentlegislates for us now-a-days, ' It shall be lawful for theLocal Government Board to make from time to time aprovisional order for transferring to County Councils anysuch powers, duties, and liabilities of H.M. Privy Council,a Secretary of State, the Board of Trade, the Local GovernmentBoard, or the Education Department, or any othergovernment department, as are conferred by or in pursuanceof any statute and appear to relate to matters arising withinthe county and to be of an administrative character.' Such aprovisional order will require an act of parliament to put it inforce. The hope, I suppose, is that some measure of decentralizationwill become possible, a hope which can onlybe fulfilled if the County Councils prove themselves capableand honest. For the moment, however, this act only adds tothe existing confusion ; we have one new 'local authority,'but the older local authorities still exist: the guardians ofthe poor, the school boards, the sanitary authorities, thehighway boards and so forth. It may be that some day alecturer will be able to state in simple and general terms thechief outlines of our local government; but that time has notcome yet. That between the township or parish and theshire there should be some intermediate district is an ideawhich crops up again and again in all. our legislation andschemes of legislation : it is, we may say, the old idea of thehundred. Some day it may become possible for a lecturer tosay England is divided into shires, the shire into hundreds,the hundred into townships ; each township, each hundred,each shire has one and only one organ of local governmentappropriate to itself: but that time seems far distant.This you will say (and I will not contradict you) is a verypoor lecture, but I do think it worth our while just to see thatthere are these vast tracts of modern constitutional law, thoughwe can do little more than barely state their existence. I sayv Sztbordinate Government 501of constitutional law, for it seems to me impossible so to defineconstitutional law that it shall not include the constitution ofevery organ of government whether it be central or local,whether it be sovereign or subordinate. It must deal notonly with the king, the parliament, the privy council, but alsowith the justices of the peace, the guardians of the poor, theBoards of Health, the School Boards, and again with theconstitution of the Treasury, of the Education Department,of the Courts of Law. Naturally it is with the more exaltedparts of the subject that we are chiefly concerned ; they arethe more intelligible and the more elementary : but we mustnot take a part for the whole or suppose that matters areunimportant because we have not yet had time to explorethem thoroughly. Year by year the subordinate governmentof England is becoming more and more important. The newmovement set in with the Reform Bill of 1832 : it has gonefar already and assuredly it will go farther. We are becominga much governed nation, governed by all manner of councilsand boards and officers, central and local, high and low,exercising the powers which have been committed to themby modern statutes.It may, I think, be instructive in this context to say a fewwords as to the active duties which our law lays upon thegenerality of Englishmen, instructive because I think thattheir extent is often neglected by students of jurisprudence.By active duties I mean duties which consist in the doing ofsomething, and not in the leaving of something undone. Nowthe great mass of our ordinary criminal law is made up ofprohibitions, of the imposition of negative duties; its languageis 'Thou shalt do no murder,' 'Thou shalt not steal,' and soforth. It does not say ' Thou shalt succour thy neighbour indistress'-I commit no crime by not pulling my neighbour outof the water, though thereby I could save his life withoutwetting my feet So again our law as to civil injuries,' Torts ' as we call them, consists of prohibitions-I am not toassault or slander or defraud my neighbour, trespass on hisland or damage his goods. Generally it takes some contractor some special relationship or some office to create an activeduty. In the greater number of cases in which anyone is

502 Constitutiog al History PERIODbound actively to do something, he is bound because he hasagreed to be bound. In some other cases he is bound becauseof a standing relationship between him and the person forwhose benefit he must act, such a relationship, for instance, asthat of father and child. So again there are duties arising outof the holding of a ~ublic office. But there are cases in whichactive duties are cast by law upon a person irrespective of anycontract, of any special relationship, or of any public ofice.First there is a comprehensive duty or class of dutiesconsisting in the payment of taxes and rates. Think for onemoment how great a group of duties we have here. If yourimagination fails you, flatter yourselves that you are youngand happy. The generality of Englishmen have to pay firstthe taxes which parliament directly imposes, and then therates which it empowers local boards and so forth to raise.During the nineteenth century the system of local taxationhas rapidly grown ; one can be taxed by many different bodies,for many different purposes, for the relief of the poor (that isan old matter), the maintenance of a police force, the improvementof sanitary conditions, for public education, for theerection of town halls, public baths, public libraries, and verymany other purposes. But it is not on duties that can bedischarged by the payment of money that I would at thismoment dwell. There are other active duties : some ancient,some modern, some imposed by the common law, some bystatute.From military duties we are practically free. We havealready traced the history of this matter. There is no powerto force men to serve as soldiers except under the ballotclauses of the Militia Act which are suspended year by year,There is a prerogative power of ~ressing sea-faring men forthe royal navy, but this has not been exercised for a long timepast. The Englishman is still by statute bound to serve as aparish constable or find a substitute if he is between twentyfiveand fifty-five years of age, and is rated to the poor rate at£4 or more, and does not belong to certain special exemptedclasses : the power of forcing men to serve as parish constablesmight be put in force if the justices at Quarter Sessionsthought fit, but as a matter of fact owing to the creation ofv Active Duties of Citixem 503the professional police forces it is found unnecessary. Butone may be forced to serve as a special constable if occasionrequires for a particular occasion, and the (Home) Secretarycan order that even the exempted classes may be sworn in.These matters are regulated by a statute of I 83 I.Then again the common law requires everyone to giveactive aid to a parish constable in the apprehension ofoffenders: within recent years a man has been indicted andconvicted for not aiding the police when they called for hisassistance (R. v. Sherloch, I. C.C.R., 20)~. We may probablylay down a more general rule and say that it is the legal dutyof every subject to do all that in him lies to suppress a riot,and that one might be indicted for neglecting this duty.Again in general one is not under any legal duty to reveal acrime that has come to one's knowledge-so long as there isno aiding and abetting, no harbouring of the criminal, so longas one simply does nothing one is guilty of no offence. Butit is laid down in the books that high treason is an exception:if I know that high treason has been committed and do notwithin a reasonable time give information thereof, I committhe crime known as misprision of treason and may be imprisonedfor life.Then look at jury service: of old this was incumbent onthe freeholders. Under modern acts it is cast upon thosewho occupy houses of a certain value or have interests in landof a certain value; speaking generally the person liable tojury service must be a householder rated at £20 or have aninterest in land worth £10 or £20 according to the nature ofthe interest ; but all burgesses are bound to serve on the juryat the Quarter Sessions for the borough.Then again one of the public duties that our law enforcesis the duty of giving evidence. A person can be compelledto testify in criminal proceedings and in civil actions and alsoin many proceedings of many kinds which are inquisitorialrather than judicial. For instance one may be summoned asa witness not only before the ordinary law courts, beforeecclesiastical courts, courts martial, but also before eitherSherlock was fined five pounds by the Quarter Sessioils at Lewes z July 1865.The Court for Crown Cases Reserved affirmed the conviction.

504 ConstitutionaZ History PERIODHouse or a committee of either House of Parliament ; or againto take examples of what is becoming common, before thepersons appointed by the Board of Trade to investigate the ,causes of a railway accident, or by the Home Office to investigatethe causes of an explosion. If one thus summoned willnot attend, he can generally be punished for a contempt ina very summary way. In civil actions a witness need notappear unless a reasonable sum is tendered to him for hisexpenses, but no such tender is necessary in a criminalproceeding.Then again it is a very general, if somewhat antiquated,doctrine of the common law that a person is bound to servethe crown in all manner of offices. We see this chiefly appliedin the cases of sheriffs : a person who has sufficient land in thecounty to qualify him for the office (a very vaguely definedamount) is bound to serve if he be appointed and can be finedif he refuses. This is, I think, but an instance of a generalprinciple which exists, though it is seldom put in force.Could a man be punished for refusing to become Chancellorof the Exchequer or Secretary of State? It is absurd toconsider such a case, but I imagine that he could. But inparticular cases statute has stepped in to enforce this doctrine:a qualified person elected to serve as an officer of a municipalcorporation can be fined for not accepting the office, thus oneelected to the office of mayor may be fined £100.But now glance for one moment at the active duties whichmodern statutes have cast upon Englishmen in general. AnEnglishman has a child born to him ; within 42 days (says anact of 1874: 37 and 38 Vic., c. 88) he must register its birth atthe proper office, if he does not he can be fined. Withinthree months, says an act of 1867 (30 and 31 Vic., c. 84), hemust have that child vaccina~ed, otherwise he can be fined.Then, says an act of I 876 (39 and 40 Vic., c.' 79), ' it shall bethe duty of the parent of every child to cause such child toreceive elementary instruction in reading, writing and arithmetic,and if such parent fail to perform such duty he shallbe liable to such orders and penalties as are provided bythis act.'I take these instances of active duties not to be dischargedNegative Duties of Citizensby the payment of money, because it seems a stronger thingto command a man to do something than to prohibit him fromdoing something. I want to warn you against taking toonarrow a view of the field of modern English law, and in sodoing I may be of some service to you in your study ofgeneral jurisprudence. Do not imagine that English law isexhausted by those departments of it that you can studyhere-the law of crimes, the law of property, torts, and contracts,and that part of constitutional law which is concernedwith king and parliament. No, there are vast departments oflaw lying outside these boundaries; some of them belong toconstitutional law, others perhaps may be called administrativelaw; for the most part they are statutory and of recent creation,the work of the last fifty years: but their importance is verygreat. For turn from active duties to negative duties, dutieswhich consist in forbearance only and see how we are surroundedby prohibitions : the list of offences for which onemay be punished summarily by justices of the peace isenormous. Then if one takes up any business or employment,if one begins to build a house or thinks to open alodging-house, or keep a trading-ship or be a baker or achimney-sweep, straightway one comes in contact with amass of statutory rules, and if one keeps all the rules expresslylaid down by statute still one is not safe, one may come acrossthe rules, orders and regulations which some Secretary of Stateor central board has been empowered to make or the bye-lawsof a municipal borough or of a local sanitary authority. Andthen you may have to consider whether you are bound bythose rules or that bye-law : for remember that the Secretaryof State or the municipal corporation has no unlimited powerof legislation ; it is but a delegated power, and if the rule orbye-law is not authorized by the power you may break it withimpunity, and the judges will say that it is invalid. If youtake up a modern volume of the reports of the Queen's Benchdivision, you will find that about half the cases reported haveto do with rules of administrative law; I mean with suchmatters as local rating, the powers of local boards, the grantingof licenses for various trades and professions, the Public HealthActs, the Education Acts and so forth. Now these matters you.

Constitutional Historycannot study here ; they are not elementary, they are regulatedby volumes upon volumes ofstatutes. Only do not neglect theirexistence in your general conception of what English law is.If you do, you will frame a false and antiquated notion of ourconstitution. That constitution does not now-a-days consistmerely of king and parliament, privy council, courts of lawand some purely executive officers, such as sheriffs, obeyingtheir commands. We have changed all that since the firstReform Act. The governmental powers, the subordinatelegislative powers of the great officers, the Secretaries of State,the Treasury, the Board of Trade, the Local GovernmentBoard, and again of the Justices in Quarter Sessions, theMunicipal Corporations, the Guardians of the Poor, SchoolBoards, Boards of Health and so forth ; these have become ofthe greatest importance, and to leave them out of the pictureis to make the picture a partial one-sided obsolete sketch.J. The C/zzlrch.We ought to devote a little time to the history and thepresent position of the church, looking of course at its legalside. We speak of the church as being established by law.This phrase has a correct meaning, still it may suggest awrong view of history, it may suggest that at some time oranother the state chose out one among a number of competingfaiths, established it and endowed it. Of course this is nottrue: the church has a continuous history from a time whenthere were no competing faiths, when the idea of choosing areligion would have seemed a profane absurdity. The medievaltheory of the relation between church and state seems this,that they are independent organisms consisting neverthelessof the same units. Every man, we may say, is a member ofboth-except indeed the Jews, whose position in Englandbefore they were banished by Edward I, was altogetheranomalous ; they were not members of the. church, but thenthey were hardly in any sense members of the state-theylived under special laws of their own protected by the kings,to whom they were financially useful, against the very generalhatred of the people ; they are an exception which illustratesThe Jfedievad Churchthe rule. But though consisting of the same units, church andstate were not one ; each had its laws, its legislature, its courtsof justice, its proper sphere of action. Their relation to eachother constituted a standing denial of that theory of sovereigntywhich has become orthodox in our own times. And itis well for students of jurisprudence to observe that such adenial does not mean anarchy. From time to time therewere disputes between the two powers; it is sufficient torecall the quarrel between Henry I1 and Archbishop Thomas;and through several centuries there is a constant borderwarfare going on between the temporal and the ecclesiasticalcourts as to the exact limits of their several domains-butnormally the relation between the two powers is that ofpeace.I spoke of the two organisms as consisting of the sameunits; this, however, is not quite true, and only perhapsbecause it was not quite true was a prolonged continuance ofthe situation possible. The English church was but a branchor member of the church catholic and Roman. King andparliament might be supreme over the English state, but theprovincial convocations were not supreme over the Englishchurch; they acknowledged the authority of the Pope andgeneral councils of the church. To a large extent the Englishchurch claimed and enjoyed what we may describe as HomeRule, and about certain matters a quarrel with the See ofRome was maintained from century to century ; in particularthe Pope was constantly striving to interfere with ecclesiasticalappointments in a way which English churchmen as well asEnglish statesmen warmly resented. For full a hundred andfifty years before Henry VIII broke with the Pope the Englishparliament had been legislating at intervals against what itregarded as the usurpations of the See of Rome-interferenceswith rights of patronage, and all this without a suspicion ofheresy or schism.Let us look briefly at the relation between the twoorganisms as it was at the end of the Middle Ages. In thefirst place we notice that the rulers of the church have a placein the supreme body of the state. The bishops and abbotsconstitute a good half of the House of Lords. Their position

Constitutional Historyin that body is, however, somewhat ambiguous ; if they areprelates of the church they are also tenants in chief of thecrown, and many abbots have shaken off the duty of going toparliament by the plea that they are not tenants in chief.Then again the inferior clergy are summoned to parliamentby the praemunientes clause; they do not attend, but theytax themselves in the two principal convocations, usuallymaking a grant proportioned to that which the commons havemade in parliament. In these convocations they enjoy acertain power of legislating as to spiritual matters, of makingcanons, and these canons can be enforced against the laity aswell as the clergy in the ecclesiastical courts.These ecclesiastical courts have a manifold jurisdiction.In the first place there is the discipline of the clergy, and this isa wide field-for not only is the purely ecclesiastical disciplinewithin their cognizance, but we have to remember that theyare the only courts which can punish an ordained clerk forfelonies, murder, robbery and so forth-to treason, it is said,the benefit of clergy does not extend. Then again they havelarge fields of jurisdiction which do not seem to us veryspiritual-all testamentary causes including the distributionof the goods and chattels of intestates are within their sphere,and again all matrimonial causes. Not content with thisthey have long sought to obtain a general jurisdiction inmatters of contract; in this they have failed, the temporalcourts have warned them off that field, but in consequencehave been obliged to enlarge their own notions of the law ofcontract. Besides all this these courts exercise a very widejurisdiction over what we may call immorality-forms ofsocial misdoing to which the lay courts pay no heed, such asfornication and incest. In the medieval law of the lay courtswe find no such headings as slander and libel ; these mattersare dealt with as sins by the tribunals of the church.The means which these courts have of enforcing theirdecrees are in theory spiritual. Over the clergy they havelarge powers, being able, for example, to degrade a clerk fromhis orders. Over the laity they exercise authority by meansof penance and excommunication. In the last resort, however,the secular arm gives them its aid. If the exco~nmunicatedperson remained contumacious for forty days, this was signifiedto the king's court, which then issued a writ commandingthe sheriff to imprison him until he should satisfy the claimsof the church. Excommunication itself had very serious legalconsequences, for the excommunicated person was unable tobring any action even in the temporal courts : it was asufficient answer to him to say 'You are excommunicated.'In this respect his condition was no better than that of anoutlaw.The existence of these ecclesiastical courts involved theexistence of a considerable class of ecclesiastical lawyers,canon lawyers, familiar with the jurisprudence of those courts-a jurisprudence which was distinct from that of the laytribunals. It included the body of canon law publishedin the Decretzrm of Gratian and its successive supplements,the more recent canons of general councils and the canonspublished by the English archbishops in their provincialconvocations. Canon law was taught in the universities ; thecommon law was not ; its students acquired their learning inLondon, in the Inns of Court, societies of common lawyerswhich had gradually grown up and provided more or lessefficiently for legal education1.As to heresy, for a long time we had practically no law,for we had no heretics. Probably it was considered that aheretic, if one occurred, would be properly burned ; in 1222we hear of a deacon being burned-he had turned Jew for thelove of a Jewess! But practical law against heresy we hadnone and needed none until the rise of Lollardy at the end ofthe fourteenth century. In 1382 we have our first statuteagainst heresy-heretics are to be kept in prison until theysatisfy the claims of the church. An act of 1401 went further-a heretic who refused to abjure was to be publicly burned.In 1414 a further act was passed ; it made heresy an indictableoffence-but the accused person is to be tried in the bishop'scourt. It was under this statute that most of the executionsof the fifteenth and sixteenth centuries took place.See Maitland, Ronzan Canon Law in the Church of England.' See Maitland's witty article, The Deacon and the Jewess 07, Apostacy atCommon Law, in the Law Quarter& Reuzew for April 1886.

510 Constitutional History PERIODWe have also to think of the church as being endowed:but this phrase again must not lead us astray-there neverwas any body of men called the church which held property.First and last the church has never been a corporation, holdingor capable of holding property. 'Church property,' if weallow ourselves that phrase, consisted and consists of thevarious properties of a large number of different persons: e.g.the Bishop of Ely as such had land, the Abbey of S. Albansas such had land, the parson of Trumpington as such hadland-a very large part indeed of the land in this country washeld by religious houses, though from Edward 1's day onwardthe statutes of mortmain had prevented the increase of thatquantity; but any land belonging to these religious housesbelonged to them and to them only. And as with land sowith tithe-in a remote age the general Christian duty ofdevoting a tenth of one's property to the service of God hadbecome defined as a burden on land ; this piece of land owedtithe to the parson of the parish church, or its tithe had beenappropriated to some monastery, but there was no body, nocorporation, entitled to the aggregate of the tithes of England.As regards ecclesiastical patronage we have to rememberthat at an early time this had come to be regarded as property.The right to appoint the parson of a church, or rather topresent him to the bishop for appointment, the advowson ofthe church (advocuiio ecclesiae) was freely bought and sold ;often it belonged to the lord of the mandr, but it might beheld separately from the manor. Over this form of property,for such we must call it, the royal courts claimed jurisdiction,and already in the twelfth century they had made good theirpoint. Thus the line between the spiritual and the ecclesiasticaljurisdictions was not drawn just where we mightexpect to find it. The provision of a parson for the parishwe might regard as a religious trust. On the other hand wemight think that testamentary causes had little about themthat was spiritual; but in the Middle Ages all litigationregarding wills was matter for the courts Christian, whileover the right to present to ecclesiastical benefices the king'scourts exercised an exclusive jurisdiction.The great series of events which we know as the Protestantv Efects of the Reformation 511Reformation altered profoundly the relation between churchand state; still it would be easy for us to exaggerate theextent of the definite legal changes. The old legal organizationof the church with its bishops, its convocations and itscourts, was for the most part preserved, though it was broughtunder subjection to king and parliament. We have only timeto deal very briefly with subsequent history. I will make anattempt to sum it up under several headings.In the first place we have the subjection of the church tothe state. In 1534 Henry VIII, having wrung from theclergy a reluctant promise that they would never make anynew canons without the royal assent, this rule was confirmedby statute (25 Hen. VIII, c. 19). In the next year it wasdeclared by statute that the king our sovereign lord, his heirsand successors, kings of this realm, shall be taken, accepted,and reputed the only supreme head in earth of the Churchof England (26 Hen. VIII, c. I). These.acts, I think we maysay, mark the moment at which the church was brought underthe state. At the same time the Church of England wassevered from the Church of Rome. It had already been madeunlawful to pay to the Pope the annates and first-fruits whichhe had been accustomed to receive, appeals to Rome fromthe ecclesiastical courts were forbidden, the English chapterswere to elect as bishops the persons recommended by theking; if they would not do so, the king was to have powerto make the appointment by letters patent. The smallermonasteries were dissolved in 1536, the greater in 1539: theeffect that these measures had upon the constitution of theHouse of Lords we have already observed1. The result ofthese measures at a time when the doctrines of the churchwere being called in question was that in 1539 parliamentfound itself legislating about religious doctrine-legislatingthis time in a conservative sense. The Act of the Six Articlesmade it highly penal to deny certain articles of the faith, inparticular the real presence. Henry did not intend thathis political measures should lend to any renunciation ofcatholic dogma or catholic ritual. But under Edward VI thereforming party got the upper hand. In 1545 we have theSee above, p. 238.

Constitutional Historyfirst Act of Uniformity-a certain book of common prayerhas been drawn up and is to be used in all churches. Anyparson who does not use the book or uses any other form ofliturgy is to be punished in a lay court-on a third convictionhe is even to be imprisoned for life. All other books ofprayer are to be destroyed ; all images in churches are to bedestroyed; bishops are to be appointed simply by letterspatent. Religion has now become an affair of statute. Butthe power which makes statutes can unmake them, as thereformers learned under Mary. The legislation of the twolast reigns was swept away, and the reformers \Yere hereticswho could be proceeded against under the Lancastrian statutes.That legislation was restored under Elizabeth, except thatshe did not assume, nor have her successors assumed, the title'Head of the Church,' and except also that bishops were to bemade under the act of Henry VIII which preserved the formof capitular election, not under that of Edward VI whichabolished it. The reign begins with Acts of Supremacy andUniformity. The former is called an ' Act to restore to theCrown the ancient jurisdiction over the Estate, Ecclesiasticaland Spiritual,' and among other things it founded the Court ofHigh Commission and imposed on all ecclesiastics an oath acknowledgingthe queen's supremacy and renouncing all foreignauthority. The Act of Uniformity imposed a book of commonprayer-to use any other liturgy was made highly penal.In substance this act (1559) has fixed the law from that timeto the present day. The present prayer book, however, is oneordained by a statute of 1662-by the Act of Uniformity passedafter the Restoration-a revised edition of the earlier prayerbook. You should therefore understand that a clergyman ofthe Church of England in reading the service is performing astatutory duty; it would be penal for him to read any otherservice. In 1871 it was thought desirable to alter the lectionaryof the service; the new lectionary was introduced by statute,34 and 35 Vic., c. 37 ; it is a schedule to an act of parliament.It is under a special proviso of the act of 1662 that theUniversity sermon can be preached without any reading ofthe book of common prayer. I say this in order to illustratethe fact that the church services are statutory. There is noThe Convocationsbody which has any power to alter them except king andparliament.This leads us to speak of the convocations. In Henry VIII'sday parliament began to pass statutes confirming the grantsof the clergy-the clerical subsidies' ; but the convocationscontinued to grant their taxes until the Civil War and beganthe practice again after the Restoration. In 1662 the practicewas quietly abandoned, and parliament began to tax theclergy directly. During the reign of William 111 a quarrelbroke out between the upper and lower houses of the convocationof Canterbury. The two houses took different viewsof ecclesiastical policy, but the exact point of dispute was thequestion whether the archbishop could prorogue the houses.The quarrel went on until 1717 when the two houses wereat issue over the Bangorian controversy. They were neveragain summoned for business until 1861-though between1717 and 1741 formal meetings were held. Thus for a wholecentury and more the Church of England (if any such body canbe said to exist) had no representative assembly, no power ofmaking rules for itself. The convocations cannot now meetwithout the royal summons ; they can make no canons withoutthe royal assent. And further, since the days of James I it hasbeen the doctrine of the law courts that canons even when theyhave received the royal assent are not binding on the laity.Thusthe legal powers of the convocations are extremelylimited;they may discuss and deliberate, but they can do very little.In reviewing the present position of the church it wouldbe necessary to chronicle that the bishops, or rather some ofthe bishops, sit in the House of Lords, that no clergyman cansit in the House of Cornmons, but that there is nothing toprevent him from voting in a parliamentary electibn. Asregards the disqualification from being elected, we have toremember that the clergy are still summoned to parliamentunder tl~epvae~nzc?tie~zteses clause. In 1801 Horne Tooke, a clerkin holy orders, having been elected, search was rnade forprecedents ; they were considered obscure and inconclusive ;the House refused to declare that Tooke was incapable ofsitting but passed an act (41 Geo. 111, c. 63) disqualifyi~ig1 See p. 240.

Co?$stitutiona Z Historyclergymen for the future. At the same time it disqualifiedthe clergy of the Scottish Church. In 1829 when RomanCatholic laymen were admitted by the Catholic EmancipationAct (10 Geo. IV, c. 7), the Roman Catholic clergy wereexpressly excluded. These disqualifications are somewhatanomalous, for there is nothing to prevent the minister of acongregation of Protestant nonconformists from sitting. In1870 (33 and 34 Vic., c. 91) persons in the orders of theestablished church were enabled to solemnly renounce theirorders and so free themselves from disability.We turn to another portion of our subject. From the timeof the Reformation onwards a long attempt is made to forcepeople to accept the doctrines and worship of the church asdefined by statute. The gradual abandonment of this attemptconstitutes the history of toleration. Starting in Elizabeth'sday we find one set of statutes directed against the Catholics,and another against the Puritans. Ill 1562 the oath ofsupremacy, which declared the queen to be the only supremegovernor of this realm, as well in all spiritual or ecclesiasticalcauses as temporal, was required of members of the House ofCommons: it might be tendered to all persons who had takena degree in the University, to all schoolmasters, to allbarristers, and to various other classes; to refuse it once was toincur the penalty ofpmem~rnire, to refuse it a second time washigh treason. In 1571 new treasons were invented : thus to callthe queen a heretic was treasonable, to publish any papal bullwas treasonable, to reconcile any of the queen's subjects tothe See of Rome was treasonable. In 1580 to celebrate masswas made a crime, and to hear mass. Everyone was to attendthe church service upon pain of forfeiting £20 per month. In1585 the Jesuits and seminary priests were expelled: forthem to remain here was high treason. As to the Puritans,the rigorous action of the Court of High Commission servedto expel them from ecclesiastical benefices, and in I 593 thereis direct legislation against them; persons who frequentirregular conventicles are to be imprisoned until they conform.Under James there was fresh legislation against popishrecusants, that is to say against all persons who refused totake an oath declaring that James was lawfully king, and thatvThe Restoratioa and Nonco~ forwzity 5 I 5the Pope had no power to depose him. Such a person wasdeprived of most of his civil rights, and was almost in theposition of an outlaw. The legislation against Catholics wasinfinitely more severe than the legislation against Puritans.Still the latter had many grievances in that they were excludedfrom ecclesiastical benefices by the Act of Uniformity, whichwas rigorously enforced. Then, as we know, for a timePuritanism gained the upper hand, and again at the Restorationit fell. The time then comes for laws against the Protestantnonconformists. All the while, however, the terrible codeagainst the Catholics remains unrepealed, though underCharles I1 and James I1 breaches of it are connived at by theking, and sanctioned by virtue of the dispensing power. Thegreat acts of Charles 11's reign which we have to notice arefive in number. The Corporation Act, 1661, obliged allholders of office in municipal corporations to receive thesacrament according to the rites of the Church of England.The Conventicle Act of 1664 made it penal for any person toattend a conventicle, that is, any meeting for religious worshipat which five persons were present besides the household.Three months imprisonment was the punishment for the firstoffence. The Five Mile Act of 1665 made it unlawful for anynonconformist minister to come within five miles of a corporatetown upon pain of a A40 fine, and no nonconformist mightteach in any public or private school. The Test Act of 1673imposed the sacramental test on all persons holdrng any officeof trust. The Parliamentary Test Act of 1678, directedagainst Roman Catholics, imposed the declaration againsttransubstantiation upon members of both Houses, and thus forthe first time excluded Roman Catholic peers from the Houseof Lords.Meanwhile the old law as to the burning of heretics hadpassed away. Its history is particularly complicated andconfused, owing to the rapid fluctuations of religious opinionduring the age of the Reformation. On Elizabeth's accessionthe old statutes of Henry IV and Henry V were repealed ;some Anabaptists were burnt in her reign, and an Arianwas burnt in 1612 under James I; but it is doubtful whetherthese proceedings were lawful, and in particular Coke gave his

opinion against the execution of 161z1. The question waswhether the common law-the old statutes being repealedhadany procedure against heresy. This case of 1612 isbelieved to be the last case of anyone being executed as aheretic. In 1677, under Charles 11, an act was passed(29 Car. 11, c. 9) which abolishes whatever power there mayhave been of burning heretics. We must carefully distinguishthe trial of a man for heresy, from his trial under any of thestatutes directed against Papists ; the Catholics who for onereason and another suffered death under Elizabeth and James,were tried by the ordinary legal tribunals for offences createdby statute.Immediately after the Revolution the Penal Code againstProtestant dissenters was very much mitigated by theToleration Act of 1688 (I Will. and Mary, c. 18). There wasa slight reaction in favour of persecution under Anne, whichproduced the act against occasional conformity of 1711(10 Anne, c. 6)' and the Schism Act of 1713 (13 Anne, c. 7),but the latter was repealed five years afterwards in 1718(5 Geo. I, c. 4). In 1728, just after the accession of George 11,a practice was begun of passing every year an act indemnifyingthose holders of offices who had failed to take the requisiteoath or to receive the sacrament-a curious English practice.It amounts to saying 'We will not repeal the law, but it isunderstood that nobody need keep it, for every year an actwill be passed indemnifying those who have not kept it.'I can best illustrate this part of the subject by referring toRlackstone's Commenta~ies,vol. IV, p. 53. Blackstone, writing inthe middle of the eighteenth century, still treats nonconformityas being in a general way an offence-he calls it the crime ofnonconformity-and then describes how of late exceptionshave been made to a general rule. For instance it is still, as ageneral rule, a statutory offence under acts of Elizabeth andJames not to go to church ; he who absents himself forfeitsone shilling for every Sunday, and £20 if he absents himselffor a month, but an exception has been made in favour ofdissenters by the Toleration Act; they may absent themselvesv Eighteenth Century and iVonconfor?~ity 5 I 7provided (I) they be neither Papists nor U~~itarians, (2)they have taken the oaths of allegiance and supremacy andsubscribed the declaration against transubstantiation, (3) theyrepair to some registered place of worship. So again dissentingpreachers are exempted from the acts which prohibitthem from teaching if they have subscribed the Thirty-nineArticles except three and part of a fourth, that is, except thosewhich relate to the government of the church and infantbaptism ; they are also exempted by a still newer act of 1779,if instead of subscribing the Articles they will profess themselvesChristians and Protestants. Toleration of any professionof faith, other than that of the established church, is still theexception, not the rule. However, by this time the moreorthodox sects of Protestant nonconformists enjoyed libertyof worship and teaching. The annual Indemnity Actsenabled them to hold office, and there had never, I think,been anything which excluded them from voting in parliamentaryelections, or sitting in either House of Parliament.With the Catholics it was still far otherwise. Catholicismhad been treated not as a mere religious error, but as a gravepolitical danger, and considering the risings of 1715 and 1745,we are perhaps not justified in condemning that treatment.How enormously severe the law was, will appear from thefollowing passage from Blackstone' : ' Papists may be dividedinto three classes--persons professing popery, popish recusantsconvict, and popish priests. I. Persons professing the popishreligion, besides the former penalties for not frequenting theirparish church, are disabled from taking lands either bydescent or purchase after eighteen years of age, until theyrenounce their errors ; they must, at the age of twenty-one,register their estates before acquired, and all future conveyancesand wills relating to them ; they are incapable of presentingto any advowson [or granting to any other person any avoidanceof the same], they may not keep or teach any school, under painof perpetual imprisonment; and if they willingly say or hearmass they forfeit the one zoo, the other loo marks, and eachshall suffer a year's imprisonment. Thus much for persons,' Coke, Reports, ~11, 93. See on the whole question, Stephen, Hastory ofCrimilral Law, vol. 11, pp. 437-69. Comme?tfaries, vol. IV, p. 55.

Constitutions Z Historywho, from the misfortune of family prejudices or otherwise, haveconceived an unhappy attachment to the Rotnish Church fromtheir infancy, and publicly profess its errors. But if any evilindustry is used to rivet these errors upon them, if any personsends another abroad to be educated in the popish reli,' oion, orto reside in any religious house abroad for that purpose, orcontributes to their maintenance when there, both the sender,the sent and the contributor are disabled to sue in law orequity, to be executor or administrator to any person, to takeany legacy or deed of gift, and to bear any office in the realm,and shall forfeit all their goods and chattels and likewise alltheir real estate for life. And where these errors are alsoaggravated by apostasy or perversion, where a person isreconciled to the See of Rome, or procures others to bereconciled, the offence amounts to high treason. 2. Popishrecusants, convicted in a court of law of not attending theservice of the Church of England, are subject to the followingdisabilities, penalties and forfeitures, over and above thosebefore mentioned.They are considered as persons excom-municated; they can hold no office or employment; theymust not keep arms in their houses, but the same may beseized by the justices of the peace ; they must not comewithin ten miles of London on pain of £100, they can bringno action at law or suit in equity ; they are not permitted totravel above five miles from home unless by licence, uponpain of forfeiting all their goods ; and they may not come tocourt under pain of £100 .... A married woman, when recusant,shall forfeit two-thirds of her dower or jointure, may not beexecutrix or administratrix to her husband, nor have anypart of his goods, and during the coverture may be kept inprison, unless her husband redeems her at the rate of £10 amonth or the third part of all his lands. And lastly, as afeme-covert, a recusant may be imprisoned ; so all others mustwithin three months after conviction, either submit andrenounce their errors, or if required so to do by four justices,must abjure and renounce the realm, and if they do not departor if they return without the king's licence, they shall be guiltyof felony, and suffer death as felons without benefit of clergy.... But (3) the remaining species or degree, viz. popish priests,Cathodic Disabilitiesare in a still more dangerous condition, for by I I and 12VCTill. 111, c. 4, popish bishops or priests celebrating mass orexercising any part of their functions in England, except inthe houses of ambassadors, are liable to perpetual imprisonment.And by 27 Eliz., c. 2, any popish priest born in thedominions of the crown of England, who shall come hitherfrom beyond sea (unless driven by stress of weather andtarrying only a reasonable time), or shall be in Englandthree days without conforming and taking the oaths, is guiltyof high treason ; and all persons harbouring him are guilty offelony without the benefit of clergy.'Such were the laws against Catholics in the middle of theeighteenth century, the result of a series of statutes extendingfrom the reign of Elizabeth to that of George 11. It iscustomary for writers to become eloquent over the acts againstProtestant nonconformists-the Corporation Act, Five MileAct, Conventicle Act- they were trifles when compared withthe rigorous laws against the Catholics. In Blackstone's daythey were seldom enforced, still they existed.From both Houses of Parliament Catholics were excludedby the declaration against transubstantiation.The greater part of this rigorous code was repealed in1791 (3 I Geo. 111, c. 32), or rather all Catholics were exemptedfrom it upon taking an oath, which it was possible for them totake, renouncing the Pope's civil power and the doctrines thatfaith need not be kept with heretics, and that princes excommunicatedby the Pope might be deposed or murdered. ACatholic who would take this oath was freed from civildisabilities, might worship in his own way in a registered place(which, however, might not have a steeple nor a bell), andcould not be prosecuted for not attending church. He mighthold most offices in consequence of the annual indemnity acts.He was still, however, unable to sit in either House of Parliament,because the declaration against transubstantiation wasrequired of all members. In strictness of law he could notvote in a parliamentary election, because all electors onpresenting themselves to vote might be required to take anoath declaring that the Pope had no spiritual jurisdictionwithin this realm ; an oath which, though not so stringent as

Constif utionad Historythe declaration against transubstantiation, a conscientiousCatholic could hardly take. As a matter of fact, however,I suspect that Catholics did vote, for the oath seems to haveseldom been tendered; owing to the lengthy process of swearingthe electors, an act of 1794 said that this form was onlyto be gone through if a candidate required it, and then at hisown expense. Catholic emancipation came in the year 1829(10 Geo. IV, c. 7). Catholics might vote in parliamentaryelections, sit in either House and hold any lay office (exceptthose of Regent, Chancellor and Lord-Lieutenant of Ireland)on taking an oath of allegiance in which there was nothingoffensive to their religious principles. The subsequent historyof parliamentary oaths we have already traced. However, asI have explained, the act of 1791 did not repeal the old lawsagainst Catholics, it merely exempted from their terms thosewho would take a certain oath. It was not until 1846 (g and10 Vic., c. 59) that those laws were swept off the statute book.Meanwhile full relief had been given to the Protestantnonconformists. The provisions of ;he Test and Corporatior1Acts, which were obnoxious to them, were repealed in 1828(9 Geo. IV, c. 17), though the work was not quite accomplisheduntil 1868 (31 and 32 Vic., c. 72): betiireen those two dates adeclaration was required of office-holders to the effect thatthey would not use their offices to injure or weaken the Churchof England.The legislation - by which disabilities have been firstimposed and then removed is very complicated, but at theDresent moment we may, I think, say that religious libertyIand religious equality is complete. These, however, are vaguephrases, and we ought to render them more precise. I meanby them :(I) That the profession of any religion or of no religionis no offence. This, however, is subject to what I shall hereafterhave to say as to blasphemy, and as to the procedure ofthe ecclesiastical courts against heresy.(2) That every form of public worship is permitted.There are provisions as to the registration of places of worship;but these, however, hardly derogate from our proposition.There are also some statutory clauses still in force againstv Meaning of Religious Liberty 52 IJesuits and other religious orders of the Church of Rome,requiring that they should obtain license to reside in theUnited Kingdom : whether they are practically applied Icannot say; they are laid down in the Emancipation Act of1829, and are severer than most people imagine: it is a misdemeanourfor a Jesuit to come into this realm without thelicense of a Secretary of State.(3) The profession of any form of religious belief is nota condition for the existence or exercise of civil rights. Onthe whole, I think we may say that this certainly is so, thoughit is only of quite late years that a person having no religiousbelief has been able to give testimony before a court of justice.Until 1869 a person who would not take an oath could notgive evidence unless he was a Quaker-Quakers had beenrelieved much earlier. In that year he was enabled tosubstitute a declaration for an oath, on satisfying the judgethat an oath would have no binding effect on his conscience.We may note also a disability in respect of advowsons.Roman Catholics cannot present to livings in the establishedchurch. This, however, is hardly an exception, though it iscurious, for it seems that an atheist may present.(4) The profession of any form of religious belief is nota condition for the existence or exercise of political rights.This is generally true-but there are some exceptions andone very notable exception. The king forfeits the crown bybecoming or marrying a Papist, also the king is directed tojoin in communion with t5e established church. It seemshowever that the king would not commit a forfeiture bybecoming a Baptist.Again it would appear that there are two offices whichcannot be held by Roman Catholics, those namely of LordChancellor of England, and Lord-Lieutenant of Ireland. Astatute of I 867 (30 and 31 Vic., c. 75) provides that the LordChancellor of Ireland may be Catholic.It remains to qualify our proposition as to the lawfulnessof publishing opinions about religion :(a) Blasphemy is a common law misdemeanour. Untillately there was good ground for contending that any publicationwas blasphemous if it denied the main doctrines of

522 Co~stitzctional Hist oryPERIODChristianity; this had been so laid down in several cases.But it seems now that we must qualify it by adding thatpublications intended in good faith to propagate opinions onreligious subjects, which the person who publishes themregards as true, are not blasphemous, if they are expressed indecent terms.(6) Under Stat. 9 and 10 Will. 111, c. 32 (1698) it is amisdemeanour for anyone who has been a Christian to denyby writing, printing, teaching or advised speakin, a the Christianreligion to be true or the Old and New Testaments to be ofdivine authority. The offender upon a first conviction isdisabled from holding any office or employment, ecclesiastical,civil or military. On a second conviction he must be imprisonedfor three years. This act had long lain dormant onthe statute book, when an attempt, which failed, was madeto put it in force against Bradlaugh1.(c) Mere heresy or schism is in all probability to this dayan ecclesiastical offence, i.e. an offence to be punished in theecclesiastical courts, and for it a man miglit be imprisoned forsix months. I am not aware, however, that a layman has beenprosecuted for heresy for the last century and more. Butthis leads us to another part of our subject: the history ofthe ecclesiastical courts.The act of the Long Parliament which abolished theCourt of High Commission used such very general words that,if it did not abolish the old ecclesiastical courts, it practicallydeprived them of their power. At the Restoration, however,by statute passed in 1661 (13 Car. 11, c. 12) it was 'explained'that this was not the desired result : the Court of High Commissionwas not to be re-established, but the old ecclesiasticaljurisdiction of the old ecclesiastical courts was to be exercisedas of old. A few years afterwards (1677, 29 Car. 11, c. 9) theact was passed which farbad the burning of heretics, but itwas expressly added that nothing contained in that act shouldtake away the jurisdiction of the ecclesiastical jud, ues in casesof atheism, blasphemy, heresy or schism, or any other damnabledoctrines and opinions, but that they may punish the sameReg. v. Bradlaugh and others, 1883. Cox, Cri7ninal Law Cuses, vol. XV,p. z18ff.vEcclesiastics Z Courts523by excommunication, deprivation, degradation and otherecclesiastical censures.There were then ecclesiastical courts-an elaborate structureof them, with appeal lying from the lower to the higher;an archdeacon's court for each archdeaconry, a bishop's courtfor each diocese, an archbishop's court for either province:the final appeal being under an act of Henry VIII (1534,25 Hen. VIII, c. 19) to the king who was to appoint judges,'judges delegate,' to hear the cause. This structure of courtswith little modification still exists. The greatest change isthat in 1832 (2 and 3 Will. IV, c. 92) the jurisdiction of thesejudges delegate was transferred to the Judicial Committee ofthe Privy Council, which was formed in the next year. Underan act of I 876 the ultimate appeal is to the Judicial Committee,certain bishops sitting as assessors of the judges according toa rota of seniority settled in 1876.But though these ecclesiastical courts still exist theirpower has very much declined. Let us take up the mainheads of the old ecclesiastical jurisdiction one by one.(i) In the first place they were, as so often said, the courtsfor matrimonial and testamentary causes : and this broughtthem a great deal of work. Every will of personal propertyhad to be proved in the bishop's or archbishop's court. Thislarge jurisdiction they retained until 1857, when it was takenfrom them and vested in two new courts : a Court for Divorceand Matrimonial Causes, and a Court of Probate, courts whichin 1875 were merged in the High Court of Justice.(ii) They had, and theoretically still have, a considerzblepenal jurisdiction over laity as well as clergy., in what we maycall cases of irreligion and immorality: a power to correct thesinner #YO salute auimae by means of penance and excommunication.Throughout the Middle Ages this power waslargely used, and it has never been expressly taken away.However it has long been considered an established principlethat the ecclesiastical courts were not to try men for temporaloffences, i.e. offences punishable in the king's courts. Nowmany of the graver offences, with which the ecclesiasticalcourts once dealt, have by statute been made crimes punishableby the lay tribunals, and in this way the courts Christian

Constitu f ionat History v Position of Clerks in English Omde~s 525have lost jurisdiction. Bigamy is a case in point; until 1603it was only an offence against ecclesiastical law : in that yearit was made a felony. Until 1855 the ecclesiastical courtspunished defamatory words : in that year their jurisdiction inthis matter was abolished by a statute (18 and rg Vic., c. 41)which speaks of it as grievous and oppressive, so I supposethat it was exercised. But they probably still have power incases of adultery and of fornication. To these must be addedheresy and schism. This jurisdiction is expressly saved bythe act which abolished the writ de hneretico cornburendo. Itis not exercised ; but seemingly it exists. As to the weaponswhich these courts have at command-over the laity these arepenance, and in the last resort excommunication. Excommunication,as already said, involved a number of civil disabilities,and if the excommunicated person would not submit,the king's writ issued de excom~nunicato ca$ietzdo, and he wasimprisoned until he satisfied the church. In 1813 (53 Geo. 111,c. I 27) the law was altered ; excommunication was no longer tohave any disabling effect, but the court pronouncing thesentence of excommunication was to have power to imprisonthe excommunicate for any term not exceeding six months.It would seem then that the heretic, schismatic, fornicator,adulterer or other offender (the catalogue of offences wecannot lay down with any certainty) may be tried by theecclesiastical court, excommunicated and imprisoned for sixmonths.(iii) These courts have had a power, never very extensive,in some matters relating to the endowments of the churches,in particular tithes and church rates. They could compel,for instance, the payment of tithes, if the right to the titheswas not disputed, but their sphere was a limited one: from anearly time, as we have already said, the king's courts regardedecclesiastical endowments and ecclesiastical patronage asbelonging to their own province. And practically the sphereof the courts Christian has become very limited indeed, a seriesof modern acts having provided summary remedies for therecovery of tithes, and of the rent-charge into which titheshave been commuted: while as to church rates, the compulsorychurch rates were abolished in 1867 (31 and 32 Vic., c. 109).There are a good many small miscellaneous matters relating tothe fabrics of the churches which are subject to these courts,but as a matter of fact the greater number of these courts dono business whatever from year's end to year's end.(iv) However it must not be forgotten that their powerover the clergy is large and real. They can suspend a clerkin orders from ministration, and they may deprive him of hisbenefice if he has one. The legal position of a clerk in theorders of the Church of England differs radically from that ofthe priest or the minister of any other religion. The one, wemay say, has in the strict sense of the term a legal status, theother has not. The duties of the clerk in holy orders aredirectly imposed upon him by law; if, for instance, he is boundnot to perform publicly any service save those authorized bythe book of common prayer, this is no matter of contract orof trust, it is a matter of status, and there are special courtswhich can enforce those duties. Otherwise is it with theCatholic priest or the Wesleyan minister, the law imposes noduty upon him as such. If he has contracted to preach thosedoctrines or perform those ceremonies and none other, anaction may lie against him for breaking his contract. If thetrustees or owners of a chapel have engaged him to teach oneset of dogmas, he will not be allowed to use that chapel forthe propagation of another set of inconsistent dogmas. Beforenow the Court of Chancery has had to decide that a nonconformistminister had no right to use a chapel, because hewas engaged to preach the doctrine of universal depravityand was not preaching it. So an English temporal court mighthave to decide whether a Koman priest was preaching orthodoxyor heterodoxy, i.e. whether he was doing what he waspaid for, or putting a particular building to its right use. Butall this is matter of contract or of trust, matter of private law,and the court would receive evidence as to what are theorthodox doctrines of the Roman Church or of the ParticularBaptists. Otherwise with the clerk in English orders-contractor no contract, trust or no trust, he has both negative andpositive duties: he must not preach heterodox doctrines, hemust not use ceremonies not authorized by the prayer book ;if he has a church he must perform the church services, he

Constitut ional Historymust bury, he must marry, and the courts do not requireevidence as to the doctrines that he is to teach, or the ceremoniesthat he is to perform : the standard of orthodox dogmaand orthodox ritual is directly fixed by law.Once more I call your attention to the fact that there isno body having power to alter that standard, other than thestatute-making body, king and parliament. This gives to theChurch of England a very unique position. Indeed I do notthink that we can for legal purposes define the Church ofEngland as consisting of a body of persons, or as representedby a body of persons. It is no corporation, it is no selfgoverningbody of persons, consequently it has no rights andno duties. As already explained it has no property : there isno land, for instance, which belongs to the Church of Englandthereis glebe of this parish church, and of that parish church.Further the benefit of the organization is not confined to anydefinite body of persons : the parishioller has a legal right ofattending the services in his parish church, until comparativelyrecent times it was his legal duty to attend them, even fromthe Holy Colnlnunion he can only be excluded for oneamong several definite causes, known to the law ; the clergymanwho refused to receive him would have to prove theexistence of one of those causes. We may speak if we willof the church as a legal organization, but we must not thinkof it as of a legal person or as a definite body of persons.K. The Dejnition of Corzstitutional Law.We will end our cause by raising a question which perhapsin your opinion ought to have been raised and discussed longago, namely, How are we to define constitutional law ? I havethought it best to postpone the discussion until this our lastmoment, because it seems to me that we cannot profitablydefine a departmellt of law until we already know a gooddeal of its contents. I hope that I do not undervalue thatstudy of general jurisprudence which holds the first place inthe programme of the law tripos ; still you will by this timehave learnt enough to know that a classification of legal rulesS'ere of ConsWzctionaZ Law 527which suits the law of one country and one age will notnecessarily suit the law of another country or of another age.One may perhaps force the rules into the scheme that wehave prepared for them, but the scheme is not natural orconvenient. Only those who know a good deal of Englishlaw are really entitled to have any opinion as to the limitsof that part of the law which it is convenient to callconstitutional.Now my first remark must be that this question is on thewhole a question of convenience. It is not to be solved byariy appeal to authority. The phrase, constitutional law, is ofcourse a very common phrase, but it is not a technical phraseof English law. I am not aware that it has ever been used inthe statute book or that any judge has ever set himself todefine it. If we had a code which called itself a code ofconstitutional law, then the definition might be a matter ofauthority, it would be thrust upon us by the legislature; butwe have nothing of the sort, and are therefore free to considerwhat definition would be convenient and conformable to theordinary usage of the term.Now there is one use of the word constitutional whichwe must notice in order that we may put it on one side.Occasionally it is contrasted with legal : we are told forexample that a minister's conduct was legal but not constitutional.We have seen that our rules of law touching publicaffairs are very intimately connected with rules touchingpublic affairs which are not rules of law, rules which aresometimes called rules of constitutional morality, or constitutionalpractice, the custonis of the constitution, the conventionsof the constitution, or again constitutional understandings. Itis to a breach of rules of this latter class, rules which are notrules of law, that we refer when we say that a man's cor~ductthough legal was not constitutional. He has broken no ruleof law, but he has broken some rule of constitutional usage,some convention of the constitution: no court of law willpunish hirn or take any notice of his misdoing, still he hasbroken a rule which is generally kept and which in the opinionofpeople in general ought not to be broken. But this usage ofthe word can hardly help us when our object is to determine

Constitutional Historywhat part of the law is to be called constitutional ; it merelytells us that according to common opinion certain rules areconstitutional which are not rules of law.Now I will place before you two accredited definitions ordescriptions of constitutional law ; the one comes from Austin,the other from Professor Holland. Austin's opinion will befound in a note at the end of the Ozrtfine of the Course ofLeciztf*esl. Having defined 'public law' as the law of politicalconditions, he subdivides 'public law' into 'constitutional law'and 'administrative law' ; and he writes thus : ' In a countrygoverned by a monarch, constitutional law is extremelysimple : for it merely determines the person who shall bearthe sovereignty. In a country governed by a number, constitutionallaw is more complex : for it determines the personsor the classes of persons who shall bear the sovereign powers ;and it determines moreover the mode wherein such personsshall share those powers. In a country governed by a monarch,constitutional law is positive morality merely: in a countrygoverned by a number, it may consist of positive morality,or of a compound of positive morality and positive law.'Administrative law determines the ends and modes toand in which the sovereign powers shall be exercised : shallbe exercised directly by the monarch or sovereign number,or shall be exercised directly by the subordinate politicalsuperiors to whom portions of those powers are delegated orcommitted in trust.'The two departments therefore of constitutional andadministrative law do not quadrate exactly with the twodepartments of law which regard respectively the stands ofthe sovereign and the various status of subordinate politicalsuperiors. Though the rights and d~tties of the latter arecomprised by administrative law, and are not comprised byconstitutional law, administrative law colnprises the powersof the sovereign in so far as they are exercised directly bythe monarch or sovereign number.&In so far as the powers of the sovereign are delegatedto political subordioates, administrative law is positive law,Austin's Viewwhether the country be governed by a monarch or by asovereign number. In so far as the sovereign powers areexercised by the sovereign directly, administrative law in acountry governed by a monarch is positive morality merely :in a country governed by a number it may consist of positivemorality, or of a compound of positive morality and positivelaw.'Let us try to make this clearer by examples. The oneobject of constitutional law, according to Austin, is to definethe sovereign. In a monarchical state it is extremely simpleand is not in the strict sense law. Thus on a subsequentpage Austin says that from the days of Richelieu to thoseof the great Revolution the king of France was sovereign inFrance'. 'But in the same country, and during the sameperiod, a traditional maxim cherished by the courts of justiceand rooted in the affections of the bulk of the people determinedthe succession to the throne : it determined that thethrone, on the demise of an actual occupant, should invariablybe taken by the person who then might happen to be heirto it agreeably to the canon of inheritance which was namedthe Salic law.' This then, in his opinion, was the wholesubstance of the constitutional law of France: the heir maleof S. Louis is to be sovereign, and in the strictest sensethis was no rule of law, it was only a rule of positivemorality. Austin's view, as you probably know, is that in amonarchical state the succession to the throne cannot be fixedby law, positive law : when the king dies law dies with him ;sovereignty is not a matter of law, it is a matter of fact : thepeople by accepting, tacitly accepting, Louis XV on the deathof Louis XIV obey no law; they raise up a new sovereign; therule which they observed in accepting the great-grandson ofthe late king was no rule of law ; they would have broken nolaw, had they instead accepted a bastard or a foreigner oranyone else. In such a case constitutional law then consistsof some simple rule, probably some canon of descent, andeven that is not in strictness law.As to administrative law in a monarchical state; it definesl]zrrispudencc, ed. 1873, vol. I, p. 73. ' jurisprudence, ed. 1873, vol. I, p. 275.

Constitutional Historythe powers of the sovereign and the powers of the politicalsubordinates. In so far as it deals with the powers of thesovereign, it is not in strictness law: no law can limit thepowers of the sovereign. If it be generally expected by theFrench nation that Louis XIV will only exercise his powersin these or those ways this expectation can constitute no ruleof law, it can at best give rise to positive morality. But as topolitical subordinates-ministers, judges, intendants-the ruleswhich, for the time being, define who they shall be and whatpowers they shall have, will be true rules of law-positive lawthoughrules which the sovereign monarch might at any timeabolish. This then is the sphere of administrative law.But turn from France of the eighteenth century to Englandof our own day. Constitutional law determines the personsor the classes of persons who shall bear the sovereign powers ;it determines, moreover, the mode wherein those personsshall share those powers. Now Austin himself had, as I daresayyou know, a curious doctrine about the sovereignty of thisrealm; instead of holding that the sovereign body consisted ofthe king, the lords and the representatives of the commonsassembled in parliament, he held that it consisted of theking, the lords and the electors: he treats the members ofthe House of Commons as mere delegates of the electors.This seems to me a singularly profitless speculation. Supposethat the present parliament were to make a statute contraryto the strongest wishes and well-founded expectations of thosewho elected it ; doubtless that statute would be law; thecourts would treat it as law and would not for one instantpermit a suggestion that parliament had exceeded its powersby betraying (if you will) the trust that was imposed in it.I am obliged to notice this point in passing, but it is of novery great importance to us at the present moment; for whicheverview we take, whether Austin's which places sovereigntyin king, lords and electors, or the commoner and saner viewwhich places it in king and parliament, the mass of rules thatwill be covered by his definition of constitutional law will bemuch the same. It is to determine the persons who shall,bear the sovereign powers and the mode wherein those personsshall share those powers. It must determine then, in the firstplace, who is to be king. The act which settled the successionto the throne on the heirs of the body of the electress Sophia,being Protestants, is clearly a part of constitutional law. Therule that a king will forfeit his crown by marrying a Papist isclearly a rule of constitutional law. Whatever law we haveas to regencies will be constitutional law. Then all the lawas to the composition of the House of Lords will be constitutionallaw. Again all the law as to the qualifications ofvoters for members of the House of Commons must in anycase be constitutional law. Accepting the ordinary doctrinethat our sovereign body consists of king and parliament, allthe law as to the qualifications of members of the House ofCommons will be constitutional; but Austin, I think, can hardlyinclude it within his definition, for according to him it is notthe representatives but the represented who form part of thesovereign body, and the rules as to how many delegates theelectors may choose, and what must be the qualification ofthose delegates, would seem to be no part of the law thatdefines the composition of the sovereign body. But any wayyou will see that Austin's definition of constitutional law isvery narrow: it only includes those rules which determinethe compositioll of the sovereign body. All rules as to theappointment and powers of officers who are subordinate tothe sovereign are excluded : they are relegated to the departmentof administrative law. Thus Austin's constitutional lawwould, I take it, say nothing of the Privy Council, of theTreasury, of the Secretaries of State, of the judges, stillless of justices of the peace, poor law guardians, boards ofhealth, policemen : all these are topics not of constitutionalbut of administrative law. Even the procedure of the sovereignbody itself is a topic not of constitutional but of administrativelaw.For my own part, I regard this definition as far too narrow,by which I mean that it excludes a very great deal of what isordinarily called constitutional law, and most certainly anystudent set to study constitutional law would be ill-advised ifhe were to trust that his examiners would not go beyondAustin's definition. To take one instance; the questionwhether the king has power to tax without the consent of

Consti tu f ional Hisf oryparliament would be very generally treated as a grave andtypical question of constitutional law, but it does not fallwithin Austin's definition ; it might be admitted that thesovereign power was possessed by king and parliament, or byking, lords and electors in certain shares, and yet the questionwould be possible whether law gave the king a power ofimposing customs duties.Let us turn to Professor Holland. Having divided lawinto public and private, he subdivides public law into six departments,the first of which he calls constitutional and thesecond administrative. Of constitutional law he writes thus1 :' The primary function of constitutional law is to ascertainthe political centre of gravity of any given state. It announcesin what portion of the whole is to be found the 'internalsovereignty,' 'suprema fotestas,' 'Staatsgewalt,' or as Aristotlecalled it, 72, ~C;~LOV r;jq ~6.X~oq. In other words it defines theform of government.' ' The definition of the sovereign powerin a state necessarily leads to the consideration of its componentparts.. ..It prescribes the order of succession to thethrone, or, in a Republic, the mode of electing a President.It enumerates the prerogatives of the king or other chiefmagistrate. It regulates the composition of the Council ofState, and of the Upper and Lower Houses of Assembly,when the assembly is thus divided; the mode in which aseat is acquired in the Upper House, whether by succession,by nomination, or by tenure of office, the mode of electingmembers of the House of Representatives; the powers andprivileges of the assembly as a whole, and of the individualswho compose it and the machinery of law-making. It dealsalso with the ministers, their responsibility and their respectivespheres of action; the government offices and theirorganization ; the armed forces of the State, their control andthe mode in which they are recruited; the relation, if any,between Church and State ; the judges and their immunities;the relations between the mother country and its colonies anddependencies. It describes the portions of the earth's surfaceover which the sovereignty of the state extends, and definesViewthe persons who are subject to its authority. It comprises,therefore, rules for the ascertainment of nationality, and forregulating the acquisition of a new nationality by naturaliza-tion.It declares the rights of the state over its subjects inrespect of their liability to military conscription, to service asjurymen and otherwise .... The contents of the constitutionalbranch of law may be illustrated by reference to a draft pieceof legislation, which enters far more into detail than is usualin such undertakings. The draft Political Code of the Stateof New York purports to be divided into four parts, whereof"The first declares what persons compose the people of theState, and the political rights and duties of all persons subjectto its jurisdiction; the second defines the territory of theState and its civil divisions ; the third relates to the generalgovernment of the State, the functions of its public officers,its public ways, its general police and civil polity ; the fourthrelates to the local government of counties, cities, towns andvillages." 'Now this can hardly be called a definition of constitutionallaw, rather it is a string of particulars. I have no doubt,however, that Professor Holland has general usage on his sidein giving the term a far wider meaning than that which Austinput upon it. But he has to meet this difficulty, that he includesso much under constitutional law that he seems to leavelittle to come under his head of administrative law. Hisgeneral idea, however, is given in these words: 'The variousorgans of the sovereign power are described by constitutionallaw as at rest; but it is also necessary that they should beconsidered as in motion, and that the manner of their activityshould be prescribed in detail. The branch of law that doesthis is called administrative law, ' Vemaftungsrecht" in thewidest sense of the word1.' I think that we catch his idea ifwe say that, while constitutional law deals with structure,administrative law deals with function. If this idea werepursued, then constitutional law would tell us how a kingcomes to be king, and how he can cease to be king, how aman comes to be a peer of the realm, when, where and how1 /zu*isprudence, 10th ed., p. 359.

Constitutio?za.Z Historymen are elected to the House of Commons, how parliamentis summoned, prorogued, dissolved, how men become privycouncillors, secretaries of state, judges, justices of the peace,aldermen, poor law guardians-for constitutional law deals notonly with the structure of the sovereign body, but also withthe structure of inferior bodies possessing legal powers ofcentral or local government. But if we ask what can thesebodies and these officers do, what are their functions, then,according to the general idea, we should be sent to administrativelaw; thus, if we ask what are the royal prerogatives,what are the privileges of the House of Commons, whatpowers has a secretary of state, a justice of the peace, a towncouncillor. But if, with this idea before us, we attempted tostate the law of England, or, I should imagine, the law of anyother country, we should probably find ourselves involved inmany difficulties. For instance, it is certainly the duty ofconstitutional law to state how, when, and by whom, parliamentcan be summoned and prorogued. Attempting to do this, weimmediately find ourselves describing one of the king'sprerogatives. It is certainly the duty of constitutional law todefine the composition of the House of Lords, but immediatelywe have to state another of the king's prerogatives-the powerof making peers. So again, if we have to describe the structureof the ministry, we must deal with the functions of the kingin appointing and dismissing ministers; while if we descendto inferior organs, such as municipal corporations and boardsof guardians, we shall have to speak freely of the functions ofthe local government board and the secretaries of state. Inshort, it is impossible to describe the structure of some organswithout describing the functions of others, for it is among themost important functions of some organs, especially the higher,to determine the structure of other organs. Thus, taking theview that constitutional law deals with structure, not withfunction, we still cannot get through our constitutional lawwithout describing very many functions of the highest organs ;we have, for instance, to describe many of the royal prerogatives,the functions of the king. The question then ariseswhether it is convenient to break up so important a topic asthe royal prerogatives, in order to deal with some parts of itunder the heading of constitutional law, and to relegate otherparts to various sub-heads of administrative law.Professor Holland is alive to the inconvenience of such acourse of procedure. He expressly includes an enumeration ofthe king's prerogatives under constitutional law, also he includesunder the same head the whole topic of parliamentaryprivileges, and I venture to think that he is right in so doing.A book on constitutional law, which did not deal with royalprerogatives and privileges of parliament, would, I think, begenerally considered as worse than imperfect. This bringshim to abandon, for the sake of convenience, the general ideawith which he started, namely, that constitutional law dealswith structure, and administrative law with function. Hisultimate opinion seems to be that constitutional law dealswith structure and with the broader rules which regulatefunction, while the details of function are left to administrativelaw.So far as I am aware, this is in accordance with commonusage, though we certainly use the term constitutional law nowin a wider and now in a narrower sense, and we shall look invain for any such term as administrative law in our orthodoxEnglish text-books. Rut I may illustrate the difficulty ofdrawing convenient lines. It would be generally allowed thatthe law as to parliamentary elections is a most important partof constitutional law: that, for instance, the extension of thecounty franchise, from the 40 shilling freeholders to manyother classes, constituted a great change in our constitutionallaw. Then again it would be allowed that the introductionof the ballot was another great change-that members of theHouse of Commons are elected by secret voting is, I take it,distinctly a rule of constitutional law. But then our law hasminute provisions as to how the registers of voters are to bemade up and revised, and again it has minute provisions as tothe conduct of the election, the custody of the voting papersand so forth ; in order to secure secrecy it descends to verysmall details. Now shall we call all these small rules, rules ofconstitutional law? Would our code of constitutional lawdescribe all the duties of revising barristers and returningofficers ? That, I think, is a question of convenience, a ques-

Constitu t ioutnl Historytion which the maker of a complete code of English law wouldhave to consider very carefully, but still a question ofconvenience, a question to be solved by the art of draftsmanship.One of the points that he would have to consider wouldbe the desirability of avoiding repetitions. Very possibly hewould find it convenient to bring under the head of constitutionallaw the broad rules which settle the qualification ofelectors, and leave the details as to the making and revisionof the registers to come under some chapter of administrativelaw. Very possibly he would find it convenient to state, as arule of constitutional law, that elections are to be made bysecret voting, and to place the description of the process ofelection, the rules which regulate the conduct of returningofficers, under some chapter of administrative law.In this country such questions would be questions ofconvenience, because our constitutional law has no specialsanctity. It would not be so everywhere. Some countrieshave constitutions which cannot be altered by the ordinarylegislature. In such countries it is, of course, a fact ofimmense importance that a particular rule is, or is not, a ruleof the constitutioll ; if it is not, it can be repealed by thelegislative assembly, if it is, then to repeal it may require anappeal to the people, or there may be no recognized mode ofrepealing it at all. But here in England that part of the lawwhich we call constitutional has no special sanctity. Thehours, during which an election may be held, are fixed bystatute, the succession to the throne is fixed by statute;neither the one nor the other could be altered except bystatute, but the same statute might alter both, the one aseasily as the other. So, I repeat it once more, the demarcationof the province of constitutional law is with us a matter ofconvenience. I do not think that we have any theory aboutit which can claim to be called orthodox. I think thatAustin's definition is decidedly too narrow. I think thatProfessor Holland's description is fairly conformable to ourordinary usage, but that the line between the constitutionaland the administrative departments is one which it is veryhard to draw.And as with constitutional law so with constitutionalRestr Zts not StrztggZeshistory. This title was, I believe, a new one when Hallamchose it for his great work, and it was liable to misconstruction.By this time it is well rooted in our language, but there seemsto be no great room for difference of opinion as to its meaning.But I think that we can see a steady tendency, very manifestin the great work of Stubbs, to widen the scope of the term inone direction, to narrow it in another. On the one hand weno longer conceive that the historian of our constitution hasdone his duty when he has told us of kings and parliaments ;at least, as regards early times, we expect him to speak of thecourts of law, of the sheriffs, of local government, of hundredcourts and county courts. On the other hand we expect himto give us a history of results, rather than a history of effortsand projects. If we look at May's hook we find it to be to alarge extent a history of efforts and projects: it is full ofproposals to alter the law, of the strife between Whigs andTories--the struggle over the Reform Bill for example.Some people seem to think that a bill loses all its importanceat the very moment when it becomes law, that it ceases tobe a subject for constitutional history, or indeed for historyof any kind, when the last division has been taken. Butthat surely is a perverse view, and I hope that it is becomingan old-fashioned view: political struggles are important, butchiefly because they alter the law. Constitutional historyshould, to my mind, be a history, not of parties, but ofinstitutions, not of struggles, but of results ; the struggles areevanescent, the results are permanent. That is, I think, theview taken by the latest and greatest of the historians of ourconstitution, and I hope the day may come when someonewill take up the tale where Stubbs has dropped it, and bringthe history of our constitution down to modern days, as ahistory of institutions, a history of one great department oflaw, and of its actual working.It will perhaps occur to you that I am making an apology,for I have spoken a great deal about modern statutes, and nota word of Whigs and Tories, Liberals and Conservatives. Well,I know that a great many apologies might be required of me,but not, I think, for this. I have been trying to turn yourthoughts away from what I think to be an obsolete and

Colzstitu f ional Historyinadequate idea of the province of constitutional history, Ihave been asking you to set your faces towards the rising sun.And the sun will rise, not a doubt of it.The practical application of these remarks should beobvious. The student who is set to read English constitutionallaw will, if he be prudent, take a wide view of hissubject. Even if his sole object be to obtain marks in anexamination, he will do well to recognize the fact that thelimits of constitutional law are not strictly defined, and thathis examiners may not be disposed to make them narrow.And when he is asked to study constitutional history as wellas constitutional law, the expedience of wide reading will bethe more apparent. Regarding the matter historically we maysay that there is hardly any department of law which does not,at one time or another, become of constitutional importance.Go back for a moment to the Middle Ages. If we are to learnanything about the constitution it is necessary first andforemost that we should learn a good deal about the landlaw. We can make no progress whatever in the history ofparliament without speaking of tenure, indeed our wholeconstitutional law seems at times to be but an appendix to thelaw of real property. It would be disastrous therefore, as wellas stupid advice, were I to tell you that you could read constitutionalhistory without studying land law-you cannot dothis, no one can do it. And then again, turn to the seventeenthcentury and the great struggle between king and parliament ;this truly is a constitutional struggle in the strictest sense ofthe word, it is a struggle for sovereigrlty, but how can youstudy it without knowing something of criminal law andcriminal procedure? At more than one moment the wholehistory of England seems to depend on what it is possible todescribe as a detail of criminal procedure-the question whetherHe is committed to prison pele speciale ma~zdatufn domilzi regis,'is or is not a good return to a writ of habeas corpus. How canwe form any opinion about that question unless we knowsomething about the ordinary course of criminal procedure ?A modern code-maker would very possibly not put theprovisions of the Habeas Corpus Act into that part of thecode which dealt with constitutional law-he would keep it forU~ity of the Lowthe part which dealt with criminal procedure-still we can seethat the history of the writ is very truly part of the history ofour constitution; if the king had been able to commit toprison without giving any reason, he would have had at hiscommand a potent engine for controlling parliament, andmight have succeeded in his effort to make himself an absolutemonarch.I have some little fear lest the study of what we callgeneral jurisprudence may lead you to take a false view oflaw. Writers on general jurisprudence are largely concernedwith the classification of legal rules. This is a very importanttask, and to their efforts we owe a great deal-it is mostdesirable that law should be clearly stated according to somerational and logical scheme. But do not get into the way ofthinking of law as consisting of a number of independentcompartments, one of which is labelled constitutional, anotheradministrative, another criminal, another property, so that youcan learn the contents of one compartment, and know nothingas to what is in the others. No, law is a body, a living body,every member of which is connected with and depends uponevery other member. There is no science which deals withthe foot, or the hand, or the heart. Science deals with thebody as a whole, and with every part of it as related to thewhole. Who, at this moment, can vote in parliamentaryelections? Begin answering that question, and you begin totalk about freeholders, copyholders, leaseholders; but youcannot talk about them with much intelligence unless youunderstand some real property law. Life I know is short, andlaw is long, very long, and we cannot study everything atonce; still, no good comes of refusing to see the truth, andthe truth is that all parts of our law are very closely relatedto each other, so closely that we can set no logical limit to ourlabours.

APPENDIXBy the Parliament Act of 191 I (I and z Geo. V, c. 13) itis providedI. That if a Money Bill (subsequently defined as 'aPublic Bill which in the opinion of the Speaker of the Houseof Commons contains only provisions dealing with all or thefollowing subjects '-a list follows) is sent up to the House ofLords at least one month before the end of the session andis not passed by the House of Lords without amendmentwithin one month after it is sent up, the Bill shall, unlessthe House of Commons direct the contrary, be presented tothe King and become an Act of Parliament on the RoyalAssent being signified notwithstanding that the House ofLords have not consented to the Bill.2. That if any Public Bill (other than a Money Bill ora Bill containing any provision to extend the maximumduration of Parliament beyond five years) is passed by theHouse of Commons in three successive sessions (whether ofthe same Parliament or not) and having been sent up to theHouse of Lords at least one month before the end of thesession is rejected by the House of Lords in each of thosesessions, the Bill shall on its rejection a third time by theHouse of Lords, unless the House of Commons direct thecontrary, be presented to the King and become an Act ofParliament on the Royal Assent being signified thereto,provided that two years have elapsed between the date ofthe second reading in the first of these sessions in the Houseof Commons and the date at which it passes the House ofCommons in the third of these sessions.3. That a Bill shall be deemed to be rejected by theHouse of Lords if it is not passed by the House of Lordseither without amendment or with such amendments only asmay be agreed to by both Houses.4. That the House of Commons may in the passage ofsuch a Bill through the House in the second and thirdsessions suggest amendments without inserting them in theBill. If these amendments are agreed to by the House ofLords, they shall be treated as amendments made by theHouse of Lords and agreed to by the House of Commons.5. That the duration of Parliament should be reducedfrom seven to five years.The general effect of these provisions is (I) to deprive theHouse of Lords altogether of its power of amending orrejecting Money Bills, (2) to restrict the House of Lords toa suspensive veto in respect of Bills (other than Money Billsor Bills to prolong the duration of Parliament), as may bepassed by the House of Commons in three successi.re sessionsduring the first two years of Parliament, (3) to enable thecountry to pronounce more rapidly upon the action of aministry so passing bills into statutes in defiance of theopposition of the Second Chamber.

Abbesses, 168Abbots, 82, 166, 238Abjuration, Oath of, 365Act of Settlement, 286, 288, 292, 313,318, 343-5, 365-6, 367-8, 390, 427,480Administrative Law, 528, 533Admiralty, 393Agriculture, Eoard of, 413Aids, 27, 64, 180Alfred, -2, 148Aliens, 426-8Ambassadors, 426Anderson, resolution in, 274Anglo-Saxon Law, 1-6, 8Anne, 285-6, 33!, 348, 395, 423Annual Indemnitles, 516Annual .----~ Parliaments, 177, ..182, 248,250-1, 293, 295, 373Appeal, the, 109, 128.9, 213: 230, 480Appeal, Court of, 464-5, 467Appellate Jurisdiction Act, 350Appellate Jurisdiction of Council, 136,A.3379 339-40, 4637 5%3Appellate Jurisdiction of Lords, 136,214-5,. 316-7, 335, 3501 467Appropriation of Suppl~es, 183-~, 309-10, 385,. 433, 444-7Arms. ---~ Assue of, 162, 276~rmy, 275-80, 325-9, 447-54Army Act, 44s53, 490Army Council, 455Array, Commissions of, 277Arrest of the Five Members, 321-2Articles of War, 449-51, 457, 490Ashford v. Thwnlon, z I 3Assisa, 126, 130Assise, Commission of, I 38-9Assizes of Henry 11, 12, 13, 109, 111-13, 124-6, 127-9, 138-9, 162, 276Athelstan, 148Attainder, 215-6, 246, 319Attaint, 131, 263, 315-6Austin, J., 101, 528-31, 536Bacon, Lord, 246Bail, 31 5INDEX.Ballot Act, 370, 496Ballot (Militia), 456, 458-60, 502Bangorian Controversy, 31 I, 513Bank of England, 442Baronage, 64-6, 78-84, 166-1 72Barunes nzajores, 54-6, 80Bates's Case, 258-9Battle, Trial by, 9, 112, 120, 212-3Becket, 10, I I, 67Beneficium, I 52, I 58-9Benefit of Clergy, 22 30Benevolences, I 81, z$Berkeley Peerage Case, 83Bill of Rights, 2g4, 288, 296, 303,305, 306, 309, 312, 315, 3217 328,373, 388Births, registration of, 504Bishops, 171-2, 238-9, 347Black Death, 208Blackstone, Sir W., 142-3, 260, 301,332, 415-7, 4191 424-5, 429, 4339466, 482, 516-7Blair, Slr A.'s case, 317Bland's case, 244Board of Trade, 412Boards of Health, 498Boroughs, definition of, 54; privilegesof, 52-4; representation of, 73,88-90, I 73-4, 239-40, 289-91 ;government of, 291, 495-7; franchiseof, 355-7, 359-63; parliamentaryand munic~pdl, 495-6Bracton, 17, 18, 21, 22, 100, 102, 104,129, 134, 156, 269Bradlaugh cases, 367, 522Bribery, electoral, 371Britton, 21-2Burial Boards, 499Burnell, R., 221Bushell's case, 316Cabal, 389Cabinet, origin of, 389-95 ; characteristicsof, 395-4" ; constitution of,402-5Canon Law, 11, 509Canute, 3, 6, 40, 107, 148Capitular Election, 63, 172, 239,~.347Carucage, 67Catholic Emancipation, 520Catholic Relief Act, 366, 519-20Catholics, 365-7, 514, 515-21Central Government, 54-105Chancellor, Lord, 69, 91, 133-4, 202-3, 220, 221-6, 392-3, 413, 466-8Chancellor of the Exchequer, 135, 392,403Chancery, Court of, 69, 114, 221-6,270, 312, 316-7, 466-71Channel Islands, 337Charles I, 282-3, 286-7, 289-90, 292-3, 307-8, 325-6Charles 11, 282-3, 286-7, 289, 291,295-6, 309-10, 327-8, 389, 4339438-9Ch~ltern Hundreds, 372Church and State, 101-2, 506-13Church Courts, 508-9, 522-6Church, English, 506-26 ; Irish, 336,347; Scottish, 332Church property, 5 10Civil List, 435-8Clarendon, Assize of, 46, rog, 127,129; Constitutions of, 10Clarendon, Lord, 327Clergy, legal position of, 525-6 ; taxationof, 31 I ; representation of, 73-8,166, 169, 185-6, 238-9, 240, 247,288-9, 347, 507-8Clergyable Offences, see Benefit ofClergyClericis Zaicos, 95Clifton Barony, 83Coinage, right of debasing, 260, 419Coke, Sir E., 83, 142, 228, 239, 259,262-4,268-71, 274,300-1, 305, 307,3359 4203 431, 4797 5'5Colonies, 337-41Comrtes of Tacitus, 56, 146Commander-in-Chief, 454Commendams, 270-1Commendation, 149-50Committee of privilege, 79Comnlon Law, 22, 471Common Pleas, 69, 133, 209-10Commons, House of, 85, 175-6, 182,239-40, 247-89, 289-92, 351-80Conzn~une Conszburn Regnz, 64Commutation, power of, 480Compurgation, see Oath-helpersConciLiunz Ordinarium, 91, and seePrivy CouncilConzrt~zatio Carta?-unz, 96, 308Consolidated Fund, 440-5, 472Constable, the, 266Constables, 46, 233, 235-6, 276, 486-9, 502Constitution, Legal theory of, 415-8Constitutional Law, 526-39Contempt, 323-4, 377-8Conventicle Act, 515Convention of 1689, 283-4, 296Convention Parliament, 282-3, 288-9,295Conventions of the Constitution, 342,398, 517-8Convocations, 77-8, 182, 240, ~II, 513Copyhold, 49, 50, 904-5Coronation Oaths, 98-100, 286-8,343-4Coroners, 43-4, 71Corporation Act, 515Corporation, Idea of, 54Council of the North, 263-4, 31 ICouncil of Wales, 264, 311County Associations, 459County Councils, 499-500County Court, 39-44, 69, 85-7, 89,105-6, 132, 493County Court (Modern), 429, 463-5County Franchise, 85-8, 353-8Court Baron, 46-52, 734Court, Customary, 49, 106, 204-5Court Leet,, 46, 50,Court Martlal, 45 1-2Court for Crown Cases reserved, 476Court of High Commission, 264-6,269, 312Courts, power of creating by prerogative,419-21Craft Guild, 53Criminal Courts, 473-7Criminal Information, 231, 475Criminal Justice, 480-1Criminal Law, 226-32, 477-8Cromwell, Oliver, 294-5, 334Crown, The, 418, 479-80C z ~ Regis, k 61-4, 91, 105-6, 162Danby's case, 310, 318, 328, 480Danegeld, 58, 68, 92Danelaw, 3Darnel case, 307, 313Declaration of Rights, 284, 296, 309,312, 321Delegated Powers, 407Demise of the Cro\rrn, 297, 374Deposition, Power of, 103Dialogus de Scaccario, 13Dispensing Power, 188, 302-5Disqualification, 351, 363-4, 367-8,513-4Dissolution, Power of, 374, 422Divisional Courts, 472

IndexIndexDomesday Book, 8, 9, 155 Fortescue, Sir J., 193, 198-9, 211,Domicile, 341 213-4, 221Duties (legal), 501-6Franchise, Parliamentary, 85-90, 173-5,240, ~QO-1, 352-63 . Eadric, 2Frankalmoign, 25, I57Ealdorman or eorl, 39-40Freehold, 35-8Edgar, zFyrd, 162Edhund, zEducation Acts, 504, 505 ; Depart- Gaol Delivery, 140ment, 413George 1, 395, 397Edward the Confessor, 3, 59, 97, 151 George 11, 395, 397Edward the Elder, zGeorge 111, 395, 397, 409, 494Edward I. 18-23, 73-8, 83-51 9'1 George IV, 408-995-6, 99, 162,-179;-276, 330 Gesith, 56, 146Edward 11, 99-100, 177, 1791 1907 Glanvill, 7, 13, 18, 22,97, 103, 111,277115, 124, 156Edward 111, 166, 179, 181, 277 Gloucester, Statute of, 132, 205Edward IV, 174, 178, 181, 194, 199, Grand Assize, I I?, I24?2r. - - -, 266 - - -Grand Jury, 211-12, 474-5, and SeeEdward VI, 239, 249JuryElections (Parliamentary), 173-4; Dis- Grand Sergeanty, 30puted, 247-8, 291, 370-1 Great Officers of State, 390-1, 428-30Electoral districts, 362-3 Guardians of the Poor, 4y7-8Eliot, Sir John, 231, 242, 3149 321Elizabeth, 238-9, 242, 249, 2569 261,263, 267, 325, 512Enlistment, 452-3Equity, 221-6, 466-71Escheats, 29-30, 1 I IEstates of the Realm, 74-90, 181-2Ethelbert, I, 2Ethelred the Unready, 98, 127Evidence, 469-70, 503Exchequer, 13, 63, 68, 133, 1.35,209-10Excise, 434-7Excommunication, 524Executive and Leg~slative, 415-8, 430Ex~ulsion from House of Conlmons,372Eyre, Articles of the, 127, 137-8Eyre, Governor, 492Felony, I 10-1, 229-30, 478Fenwick, Sir J., 319, 386Ferrer's case, 244Feudal Courts, 105-6, 151Feudal Revenues, 433-4Feudalism, 23-4, 38-9, 57, 141-64Finch, C. J., 299, 300Finch, H., Lord Nottlngham, 312, 466Fines on alienation, 29Fitzharris case, 317Fitzwalter Barony, 82Five Mile Act, 515Flambard, R., 160Floyd's case, 244, 245Folkland, 57, 93, 146-7, 150, 431Forests, 13Habeas Corpus Act, 314-5, 477; w~I.,271-5: 313-41 324, 3789 538Hale, Sir M., 19, 260, 419Hall's case, 244Harold, Election of, 59, 60Haxey's case, 241Henry I, 8, 9, 10, 53, 60, 63, 97, 1371I 59-60Henry 11, IO-I~,~I, 66-7, 109, 111-13,124, 137, 162-3, 333Henry 111, 14-18, 70-1, 91, 95, 97,102-4, 133, 134, 2001 482Henry IV, 182, 184, 191-2, Henry V, 173, 178, 192, 201, 217, 278Henry VI, 173-4, 178, 193-4, 200-1,216Henry VII, 178, 181, 183, 195, 200,202, 219-20, 333Henry VIII, 227, 239, z48, 251-3,2.i6,258, 263, 264-5, 286-7, 3309 334,3479 511Heresy, 509, 515-6, 522Heriot, 148, 159-60High Steward, see Lord HighHighway Boards, 499Hlothar, zHobbes, T., 297-8Holland, T. H., 528, 532-5Steward~ o m ~ 26 e ,Home Secretary, 410-1Horne Tooke, 513Hubert de Burgh, 133, 200Hundred, 44, 493, 500Hundred Court, 44-6, 105-6, 132Hundred Rolls, 88Impeachment, 215, z45, 31 7-8, 322,3273 477, 480Inlpositions, 258-9, 306-8Impressment, 280, 453, 461-2Indemnity, Acts of, 386-7India, 41 IIndictable Otlences, 230-1Indictment, 109-10, 128-31, 213, 474-57 480Ine, zInfant and Incapable Kings, 344-6Inquest of Sheriffs, 41Inquest (Frankish), 7, 9, 121-2Inquest (Norman), I 22-4Ireland, Parliament of, 333-5 ; representationof, 290; Union of, 335-6,349-5 IIrish Peers, 350-1Itinerant Justices, 43, 63, 69, 127-8,137-41, 210James 1, 238, 239, 243, 250,253, 261-2,268-71, 279, 331James 11, 283-5, 287, 291, 304-6, 312,328-9Jews, 365-7, 506John, 68, 939 97, 103, I341 333Judges summoned to Parliament, 84 ;independence of, 3 12-3, 478-9Judicature Act of 1875, 471Juries, independence of, 3 15-6jury, 7, 13, 71, 112, 115-31, 211-13,2199 23'3-1, 468, 47% 474-5, 503Justice, Administration of, 105-41, 162-3, 204-26, 311-20, 462-84 ; HighCourt of, 464, 471-2Justices of the Peace, 206-9, z 18, 231-3,2359 486-9, 493-9Justiciar, 63, 91, 133Keeper of the Privy Seal, 203Kentish Laws, I, 2, 6 ; Custom ofBorough, English, 37Kingship, origin of, 55-60; hereditarycharacter of, 97-8 ; conception of,98-100; legal theory of, 100-105 ;powers of, 195-9; constitution of,281-8; after 1689, 343-6; dependenceon ministers, 3923; new statutorypowers of, 399 ; classificationof powers, 422-30King's Bench, 69, 133-5, 209-10King's Court, 61-4, 105-41King's Peace: 108-10, 197King's seals, 202-3Knights of the Shire, 71-5, 81, 85-8,172-3, 291-2Knight's service, 25-30, 157-8Lambard, W., 232, 236, 493Lancastrian view of the Constitution,198-9Landrecht, Land-system, I 5623-39, see FeudalismLaud. Archbishop, 286, 319Law Officers, 481; sphere of, 505-6Leges E~fwar,dr Confessoris, 8, 10, 108Leges Henrici Prinzi, 8, ro, 70-1, 107-8, I 10, 169Leges Willelp~zi himi, 8, roLegislation, source of, 96 ; developmentof, 18430; for dependenc~es,337-8; change in character of, 383-7;indistinct sphere of, 196Lehnrecht, I 56Lex Salica, I, 7, 8Life Peers, 79, 167-8, 348Local Government, 39-54, 204-11,232-36, 492-506 ; Local Govern-ment Act., loo-GOOa,, " -Local Government Board, 384, 412,4989 500Locke, John, 290, 291London, 5.3, 117, 175, 291, 486-7Long Parliament, 282, 293-5, 311-2Lord Hlgh Admiral, 393Lord High Steward, Court of, 170, . .214, 3;8-9Lord High Treasurer, 135, 220, 392Lord Lieutenant, 234-5, 455-6, 459Lord President of the Council. 202Lords, House of, 78-9, I 36, I 69, z 13-5,238-9, z45-6, 248, 288-9, 310-1,3'6-79 3359 347-51, 473Lords of Appeal, 350-1, 473, ".Magisterial Examination, 477Magna Carta, 64, 66, 69, 93, 129, 133,138, 160, 169, 172, 183, 313, 333Man, Isle of, 337Manor, 47-8, 57Manor Court, 48-52, 133Markham, 228Marlborough, Statute of, 17, 27, 73Marriage Law, I IMarriage, Right of, 28Marriage (Royal) Act, 344Marshall, The, 266Marshall, William, 70, zooMartial Law, 266-8, 279,.324-5, 328,- .. -490-2Mary, 239, 249, 267Melville's case, 477Merchant Guild, 53Metropolitan Police, 487Middlesex, Sheriffs of, 375, 378Militia, 162, 234-5, 276-9, 325-6,

546IdexMinisterial Responsibility, 20.3, 393-4, Petition of Right, The, 293, 307, 313,396, 484 ; system, i68-9 i offices, 3279 49'403Petition, Right of, 323Ministry, 380Petty Jury, "2-3, and see JuryMinorities, 200-2Misdemeanours, 230-1, 478, 488Mompesson, Sir G., 246Monasteries, 5 I IMoney-Bills, origination of, 182, 247,310-1Monopolies, 260-1Montfort, see SimonAfu~zdb~yce, 108Municipal Reform, 359-60, 495-7 ;Corporations, Act of 1882, 413-4MZLT~YU?~, 46Mutiny Acts, 328-9, 447-8National Debt, 438-42Nationality, 34 INaturalization, 384, 426-8Navy, 460-2Nisi P~ius, I 39-4 INoZle proseyui, 303, 48 INorman Conquest, 6-10, 151-61Norman Law, 7Northampton, Assize of, 13, 128-9Nowell's case, 247Oath-helpers, I 15-8, 205Oaths, I r 5-6 ; Parliamentary, 364-6 ;Privy Councillors, 400Offa, 2Ordeal, 18, I 15, I 19-20, 129-30Orders in Council, 394-5, 405-7, 463,496Ordinances, 187-8Outlawry, 475Oxford, Provisions of, 73Oyer and Terminer, 140-1Palatine Earldoms, qr ; Counties, 90,163, 289? 465Pardon, R~ght of, 476, 479-80Parliament, 16, 20, 21, 64-96, 163,166-90, 238-55, 288-97, 337-40,347-87Parry's case, 244par$ government, 395-7Pateshnll, RI., 21Patey's case, 324Patronage (royal), 428-30; (ecclesiastical),510Peacham's case, 270Peerage, 167-72, 288-9, 348-51, 377,a:h-7p;;agi Bills, 348Peers, Trial by, 169-71, 214, 318-9Petition of Right, 482-5Petty OKences, 231-2petty Sergeanty, 30Petty Sessions, 474Pipe Roll, 10Placemen, 292, 368Placita Coro?ze, see Pleas of the CrownPleas of the Crown, 107-1 rPolice System, 485-92, 502-3Poor Laws, 233, 384, 4x2, 415, 497-9Posse Cornitatus, srr M~litiaPossessory Assizes, r 24-5, I 389Postmaster-General, 4 I 3Poynings' Law, 333-5Pyecipe, Writ, 100, I 12-3Py~nrzrrzientes Clause, 78, 166, 240-1Pye~rzunire, Statute of, 218Preliminary Examination, 232-3Prerogative, 195-7, 298-301, 342-3,418-21, 422-30Prime Minister, 396, 404- 5Primer Seisin, 27-8PrimogeniP~re, 37-8, 157Privilege, Parliamentary, 240-5, 320-4,37430Privy Council, 91, 136, 187-8, 199-zoo, 216-19, 221-6, 255-75, 320,334? 337,388-909 34-57 400,405-7 ;Jud~c~al Comm~ttee of, 340, 462-3Probate and Divorce, I I, 464, 471-2,523Procedure, Chancery, 469-7 IProcedure, Legal, I I 5-31Procedure, Parliamentary, 248Proclamations, 256-8, 302Proclamations, Act of, 253Proctors, 73, 77, 166Prohibitions, 268-9Prosecutions, 481-2Protestation of 1621, 243Provisions of Oxford, 73Provisions, Papal, 172, 507Provisors, Statute of, 186, 218Proxies, 248Public Health Act, 498Purveyance, 183, 327Quakers, 365, 521Qualification (parliament), 291-2, 369-70; (commission of the peace), zoyQuarter Sessions, 206-9, 231-3, 474-5,486-7Quia E?~r$to?-es, 24, 25, 51, 73, 86Raleigh, W., zrReal and Personal Property, 37Recorders, 497Reeve, 47Reform, Parliamentary, 290, 291, 348,354-63Reformation, Effects of, 238, 511-3Regency question, 345-6Registration system, 370Reliefs, 27, 159-61Religious disabilities, 364-7, 514-21Reporting (Parliamentary), 376IndexRepresentation, 47, 64-8, 71-2, ~6~-6,362-3Resumption, Acts of, 431-2Revenue, royal and national, 92-6, 251,43-43.Revolution of 1688, 284-6, 388Rex v. Broadfoot, 461-2Richard 11, 103, 167, 187-8, 191-2,~97-8, 241Richard 111, 181Riot Act, 489-90Rolls, Master of, 393, 467Roman Law, 5, 6, 11, 14, 21,332Royal Family, 346Sac nnd Soc, 9Saladin Tithe, 13, 67Salisbury, oath of, 161Sanitary Law, 498Scotland, representation of, 290; unionwith, 331-2, 349, 351Scottish Law, 332 ; peers, 349Scutage, 13, 64, 158, 179Seals, 202-3, 393-4Secretaries of State, 392, 402-4, 409-11, 428, 4543 486-7Seisin, 112, 124-5Septennial Act, 296, 374Shaftesbury's case, 324Sheriff, 40-1, 89, 134, 205, 207, 233-43 48.59 504Sherlock's case, 503Ship-money case, 298-300, 308Shire, see CountyShire Court, see County CourtShirley's case, 244Shirley v. Fag-, 317Simon de Montfort, 72-3, 85Six Articles, Act of, 51 ISkin~ler v. East India Co., 3 16Slavery, Abolition of, 339Smalley's case, 244Smith, Sir T., 255, 298Socage, 31-2, 35, 150Sokemanni, 48Soldiers, legal position of, 451, 490,and see ArmySomerset, Protector, 253-4, 256Sovereignty, Theory of, 101-3, 254-5,297-301, 482Speclal Reserve, 459-60Spelman, Sir H., 142-3Star Chamber, 218-21, 261-~, 274-5,3119 3149 316Statute, form of, 184-6, 381 ; evidencefor, 382; contrasted with Ordinance,186-8; government by, 382-7, 405-9Statute Law, 189-90, 253-4Stephen, 9, 10, 11, 12, 60Steward's Court, see Lord High-StewardStipendiaries, 474Stockdale v. Hansard, 375-6Storie's case, 244Stratford's case, I 71Strode's case, 242, 321Succession to Crown, 59-60, 97-100,190-5, 252-3, 281-6, 343-6Suit of Court, 48Supremacy, Act of, 265,.51% ; oath of,-364, 514Suspending Power, 3054Tacking, 310-1, 399Tallage, 94, 96, 179Taxation, 64, 66-8, 71-2, 92-6, 174-6,179-84, 247, 306-1 1, 430-7, 502Temple's scheme, 389Tenths and Fifteenths, 174, 176Tenure, idea of, 153 ; importance of,538-9Tenure in chief, 61, 64, 66, 163Termor. 26~erritohai Army, 459-60Test Act, 515Testament, see WillsTest and Corporation Act, repeal of,366, 520Thegns, 56-7, 146-7Thegn-service, 147-8Tltot~zas v. Keg., 483Thorue's case. zar~01e;ation ~dt, gr6Tonnage and Poundage, 178, 182-3,251, 2933 3079 435Torture, 131, 221Tourn, see TurnTownship, 47, 51-2Treason, 59, 148, 226-9,319, 478, 503,514Treasurer, see Lord High TreasurerTreasury, 135, 407-9Treaties, 425-6Triennial Acts, 293, 295-6, 373-4Trusts, 223-4Tudor Monarchy, 237-8Turn, the Sheriff's, 46, 485

Uniformity, Acts of, 512, 515Unions, see Poor LawsUses, 223-4Vacarius, I r, I 2Vaccination, 504Veto, Royal, 189, 423YiZlata, see Townsh~pVilleinage, 33-5, 204Wages, attempt to fix rate of, 207-8Wages (Justices), 494Wages, Parliamentary, I 76, 37 IWales, representation of, 239, 330Wapentake, 44-5War and Peace, 423-4Wardship, 28Warren Hastings' case, 318, 477Wason v. Walter, 376Ways and Means, Committee of,447Wensleydale case, 79, 168, 348Wentworth, Peter, 242Westminster, Parliament at, 175 ;Provisions of, 17 ; Courts at, 69 ;Statutes of, 20, 27, 73-4, 139-40,272-39 3'5Wihtrzed, 2, 6Wilkes, John, 372, 410Willlam I, 7, 9, 60-1, 154-8, 161William 11, 60, 159-60, 162William 111, 283-7, 296-7, 334, 388,3953 4231 4s2Wllls, Law of, 30, 37-8Winchester, Statute of, 162, 276, 279Witan, 56, 58-9Witnesses, I 18-9Women, rights of, 82, 364Woodstock, Assize of, 13Wool, Customs on, 180-1Wrtt-making power, 104-5, 1 14, 222Wr~t of Error,. 476Wr~t of Inquis~tion, 123Wr~t of Right, I I 1-2Writ of Subpana, 468-9Writs of Summons, 76, 176-7Writs of Trespass, I 14Year-Books, 22, 210York and Lgncaster, 192-4